Data from Oxfam International reveals that in May 2021, people in G-7 countries were 77 times more likely to have been vaccinated than those living in the world’s poorest countries. About 28% of the 1.77 billion doses of covid vaccine administered worldwide by May 2021 were provided in G-7 countries. The share of low-income countries was an abysmal 0.3% of total vaccinations.
Public goods often lead to the so-called free rider problem, where people who benefit from public goods do not pay or underpay to use them. This hardly encourages producers to innovate and produce this good. Proponents of patent rights believe that patents ensure economic growth by preventing infringement of intellectual property and making inventions profitable. Additionally, pharmaceutical companies are commercial, for-profit entities and therefore cannot be expected to act in a totally altruistic manner. Yet they have a strong incentive to innovate and improve production because the need for both is so evident in healthcare. Moreover, the ethical principles of non-maleficence and justice are violated if developed countries deprive other countries of access to vaccines. The fundamental rights to life and liberty are fundamental human rights and must take precedence over property and property rights, especially in times of health emergencies.
In many cases, funding for vaccine development is provided by governments, which is often overlooked in the granting of patents, but should compel patentees to serve broad public purposes that include the global distribution of vaccines by case of crisis.
In the wake of covid, several companies have come together for “The Open Covid Pledge”, which distributes “non-exclusive, royalty-free” licenses for covid products and provides an open framework in which patent holders can engage voluntarily not to assert the exclusive rights to manufacture, use, sell, reproduce and import these products, but this is not a long-term solution.
UNESCO’s International Bioethics Committee and its World Commission on the Ethics of Scientific Knowledge and Technology advocate universal access to health care through international coordination based on the imperatives of equality, justice and solidarity. They support Covax, which is an initiative led by the World Health Organization, Gavi the Vaccine Alliance and the Coalition for Epidemic Preparedness Innovations.
There are several mechanisms regulating patents and property rights. In order to prevent the abuse of patent rights, compulsory licenses were introduced by the Agreement on Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization. However, since the rules on this are limited to territorial jurisdictions, this may not do much to improve global access to vaccines and medicines. Many countries have their own national compulsory licensing laws, but major economies like the United States and China do not have such a law.
The Indian government has played a major role in promoting vaccine development at the national level. For example, the Indian Council of Medical Research funded the development of a covid vaccine, as it is important for the state to fund research and innovation for public health purposes.
Over the past 15 years, vaccine development has largely been the business of small manufacturers, while multinationals have seen their programs stagnate. For example, the Pune-based Serum Institute of India has developed a meningitis vaccine for use in Africa, with help from the Bill & Melinda Gates Foundation and Path, a nonprofit group that works to health equity. It is helpful for governments to commit to pre-purchase vaccines from manufacturers, thereby directing research resources to clearly targeted goals and appropriate projects.
Direct government funding is crucial for public health emergencies. A recent example is Operation Warp Speed in the US, which led to the rapid development and deployment of covid vaccines, securing pharmaceutical companies decent profits.
However, monopolistic pricing remains a risk. To counter the effects, vaccines could be purchased internationally (e.g. from the United Nations or the World Bank) for developing countries at a single price, and then payments could be collected from these countries according to their income levels. Patent pools can also improve access to vaccines by coordinating the actions of complementary patent holders, while reference pricing can be used by governments to reduce the prices of branded and generic medicines and vaccines.
Most countries have national patent laws that deal with the regulation of intellectual property rights. But there are also other laws, such as the Indian Competition Act of 2002, which can be used to determine whether the high price or insufficient availability of a drug is the result of anti-competitive practices or “abuse of dominant position”. “.
Another form of incentive may be a cash reward offered by the government for the development of any new vaccine made available to the public at little or no cost.
It is true that patents can limit the availability of vaccines in developing countries, but technology transfer and public financing by advanced countries can solve the problem of vaccine inadequacy to a large extent without requiring a waiver of the patents.
National patent laws and international conventions should aim to foster innovation, but at the same time they should not have the effect of reducing the accessibility of vaccines in times of urgent need, as was the case during the of the covid pandemic. These two elements should not be seen as separate government policies, but should act in a complementary way, with the balance shifting depending on the state of public health in the country.
Ruma Bhargava and Megha Bhargava are, respectively, Lead, Healthcare, Center for the Fourth Industrial Revolution, World Economic Forum, India; and IT Co-Commissioner, Ministry of Finance, Government of India