Intellectual Property and 'The Lost Year' of COVID-19 Deaths

25 Pages Posted: 6 Dec 2023

See all articles by Madhavi Sunder

Madhavi Sunder

Georgetown University Law Center

Haochen Sun

The University of Hong Kong - Faculty of Law

Date Written: November 8, 2023

Abstract

Protecting intellectual property (IP) is a question of life and death. COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021. However, most of the benefits of this life-saving technology went to high- and upper-middle-income countries. Despite 10 billion vaccines being produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to an insufficient supply of vaccines and inequitable access during the critical first year of vaccine rollout, most notably in low-income countries that lacked the ability to buy or manufacture vaccines to save their populations. IP is implicated in the choked supply of COVID-19 vaccines in low-income countries, particularly during the crucial first year of the vaccines’ availability in 2021.

This Article first diagnoses how the IP system bears some blame for a “lost year” of COVID-19 deaths and devastation in 2021. While the promise of monopoly rights in breakthrough technology helps incentive life-saving innovation, holding life-saving knowledge hostage in corporate monopolies to maximize private profit has tragic consequences. This Article diagnoses a number of causes for the inequitable distribution of life-saving COVID-19 vaccines, from misguided reliance on IP rights and voluntary mechanisms to share knowledge and vaccines, to the rise of vaccine nationalism and vaccine diplomacy, to unequal global IP institutions that disenfranchise low-income countries and continue to reproduce colonial era dependency by poor countries on high-income nations’ for life-saving technologies. Ultimately, unequal access to life-saving vaccines during the COVID-19 pandemic wreaked untold havoc on human lives and the global economy. Glaring inequity in global access affected rich countries, as well, as variants emerged in poorly vaccinated parts of the world and spread worldwide, prolonging the health and economic effects of the pandemic.

In response to the diagnosis, this Article develops cures to promote a timely and equitable supply of critical medicines in the next pandemic. As the WHO draft Pandemic Treaty recognizes, there is a critical “need to establish a future pandemic prevention, preparedness and response mechanism that is not based on a charity model.” This Article suggests several reforms to prevent such inequity in the next pandemic, including delinking vaccine development that depends on public funding from monopoly rights in technology, enhanced legal requirements to share publicly funded technologies in pandemic times, and investment in technology transfer hubs and local vaccine manufacturing capacity in low- and middle-income countries. We further suggest reforming the IP system to create a robust global technology transfer mechanism and to stimulate faster sharing of patented medicines and vaccines.

Keywords: Global health, Health law and policy, Intellectual property, Health inequities, Vaccines, COVID-19

JEL Classification: K30, K32

Suggested Citation

Sunder, Madhavi and Sun, Haochen, Intellectual Property and 'The Lost Year' of COVID-19 Deaths (November 8, 2023). Georgetown University Law Center Research Paper No. 2023/23, Harvard International Law Journal Online (Nov. 8, 2023), (2023). Georgetown Law Faculty Publications and Other Works. 2565, University of Hong Kong Faculty of Law Research Paper No. 2023/63, Available at SSRN: https://ssrn.com/abstract=4654683

Madhavi Sunder (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Haochen Sun

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www0.hku.hk/law/faculty/staff/sun_haochen.html

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