By Michael Rosen

On June 21, 2022, AEI hosted a panel to discuss a compromise at the World Trade Organization (WTO) to partially waive Trade-Related Aspects of Intellectual Property Rights (TRIPS) for COVID-19 vaccines. The panel consisted of Komal Kalha of the International Federation of Pharmaceutical Manufacturers and Associations, Patrick Kilbride of the US Chamber of Commerce, James Love of Knowledge Ecology International, and Zain Rizvi of Public Citizen.

Below is an edited and abridged transcript of key highlights from the panel. You can re-watch the full event on AEI.org and read the full transcript here.

Michael Rosen: James,
what compelled you to generally favor the framework that emerged from the WTO?

James Love: The modified waiver just covers vaccines, which
is good because we’re currently looking at vaccinating the whole planet
possibly more than once a year. That’s a massive and expensive undertaking, and
you see a big difference in costs across countries. The US is pulling a lot of
funding right now, as are the Europeans—but they didn’t put up that much money
in the first place for foreign vaccinations. They put up a lot of money for US
vaccinations, but that money is going to be harder to come by. It’s one thing
in the middle of a pandemic to say, “No one’s safe until everyone’s safe, so
let’s try and vaccinate everyone. Let’s share some of our production. Let’s share
some money.” It’s an entirely different thing to say, “Let’s do it for the next
10 years with the Europeans and Americans footing the bill for countries that
can’t afford it.” That didn’t really happen last year, but it’s certainly not
going to happen for the next 10 years, especially considering that everyone is
essentially a candidate for vaccination now—even young children.

Trying to vaccinate the whole planet once or twice a year is
a pretty massive undertaking. But here is the problem: The Baylor vaccine,
which is open-source, is available for less than $1 a jab in India. Then you’ve
got Pfizer and Moderna claiming their nonprofit price is $7 a jab in developing
countries. For most of us in the West, the difference between $1 and $7 isn’t
big, but it would be if you’re trying to vaccinate a whole country in a
resource-poor setting.

Patrick, where do you
see the fault in the pro-waiver arguments?

Patrick Kilbride: Pro-waiver advocates provide four compelling
arguments. First, there’s the idea that from a moral perspective, intellectual
property (IP) and the exclusivity it provides should not be a barrier to new
technologies or products of those technologies—certainly not in a pandemic. The
second point is that technology transfer is a social good that should be
promoted, cultivated, and facilitated. The third is that it’s beneficial to
have widespread production capacity for emerging technologies to be able to
reproduce quickly at scale. Lastly, many places around the world have this
production capacity.

The true problem is with the conclusion that the waiver
proponents have drawn. They believe that waiving IP rights will do those four
things without making the case that IP had even been a barrier to begin with.
They didn’t show anyone actually trying to scale up technologies and use the
existing flexibilities within the TRIPS but say, “We just can’t do it. IP has
become the overriding obstacle.”

Moreover, I would argue that the waiver itself would be
counterproductive to those four points. If you want local production,
technology transfer, and to grow capabilities worldwide to reproduce new
technologies at scale, the way you get there is by integrating more global players
into the ecosystem for innovation. IP rights play an indispensable role in
making that possible because of the basic economic functions of IP. The sort of
conventional wisdom today is that IP comes after innovation. It’s a discretionary
reward that governments give as sort of a “good job, champ!” So I think we’ve
got the vocabulary of IP entirely wrong since the real function of IP comes at the
front end.

Komal, as the other
anti-waiver advocate, how would you describe your position and why?

Komal Kalha: There is an acknowledgement by WTO member
states that IP is a barrier without any evidence. In fact, there’s evidence to
the contrary, which is problematic because this sets the tone for future
negotiations. If you buy into that misgiving, we may not have the quickest
response in future pandemics. 18 months ago, we didn’t have a single product on
the market to combat COVID-19. Today, Moderna, Paxlovid, and Pfizer are
household names. Strong IP protections made that possible.

The second reason is the problem with this notion that technology
transfer will suddenly happen. It’s already happening; it happened even before
India and South Africa put in their waiver provisions in October 2020. Today, there
are 380 technology agreements, of which 88 percent are technology transfer
agreements for vaccines and therapeutics. Thus, the purpose of the waiver is
not served because it was already served before the waiver.

I think the WTO has actually walked away from the responsibility it has in addressing the real barriers. At the start of the pandemic, my company did work a lot with the WTO regarding the supply of materials to make vaccines—because there were 283 trade barriers. There are still about 60 in place. Moderna was not allowed to export outside the US. India, during the second wave, put in place an export restriction even though they were a major supplier through COVAX. That restriction was in place for nine months, but the second wave lasted for only four.

The Indian minister himself said, “We have a lot of vaccines
lying on our shelves that are going to get wasted.” So why are we talking about
a vaccine waiver if we’re going to be throwing stuff away? The second thing is
the supply chain constraints we’ve had. For example, I think Pfizer had to use
drone services to get vaccines to people in Africa. The WTO needs to focus on
strengthening healthcare, but they haven’t addressed that.

In short, people are buying into this notion that IP is a
barrier and the waiver is this silver bullet that will sort everything out. But
we haven’t sorted out supply issues, the shortage of skilled workers, or how the
vaccine rollout is actually going to happen. Vaccination is the issue, not vaccine
production.

Zain, you’re
anti-anti-waiver, but not pro-waiver. Where do you stand on the WTO compromise?

Zain Rizvi: I think this moment really is an extraordinary
failure. At a deeper level, the waiver is emblematic of the following question: “Should international law
tell sovereign nations what they can and cannot do with respect to
government-granted monopolies in a public health emergency?”

The
WTO agreement that was recently revealed seems to suggest the answer is, “Yes,
international law should be allowed to dictate sovereign responses by
governments to public health crises when it comes to awarding
government-granted monopolies.” This is painful because people in the West have
moved on in large part because we have treatments and resources. That is not
the same reality that billions of people in the world have right now. So not
only did the waiver fail to really do much on vaccine production, it has also
failed to do anything on treatments and tests, which are actually the most
pressing needs. That’s where we have the starkest inequality.

Not to get too philosophical, but a constructive way of thinking about this is by asking what IP really is. One way to think about IP is through the lens of power. Who gets to control decisions about how health technologies are produced, at what price, for whom, and where? We have seen the superiority of mRNA vaccines due to their adaptability and ease of production. Out of all the partnerships that have been announced, the drug substance production for mRNA vaccines—basically the meat of vaccine production—is still occurring in Germany, Spain, Switzerland, and the US; it’s not occurring in the Global South. Why is that? Why is the most promising technology we have all benefited from not available for people in the Global South to make themselves? Why do they not have the right to production? And what makes this particularly sad is that people in the Global South both want to and are capable of making mRNA vaccines. So I’d conclude by saying there are abstract debates about IP and what role it should have, but I think it really helps to illustrate what it actually means.

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