The fluidity of the pandemic was vividly apparent last week when we all heard about the sharp and unexpected reversal of the previous US position in support of intellectual property rights at the World Trade Organization. I had just expressed my own assumption a couple of days before, that the crisis that was unfolding in India (and in South America) was wreaking havoc on the COVAX Facility and on the very premise of an equitable and global response to the pandemic. And here came another dramatic change in the policy landscape – one that has inspired me to look more optimistically on the future of the global path after all! I am a bit more optimistic about the prospects for the COVAX Facility under the circumstances, even if the waiver announcement from the White House may seem to work against the interests of a global response through the COVAX Facility.
My own very passionate interest in this matter is driven by my hopes that a global response to the pandemic will facilitate a changing form of multilateralism that is both more collaborative and brings together an expanding variety of stakeholders. I am not myself a scientist or public health expert, but I am a political scientist, and I care about the effect of the pandemic on our global capacity to collaborate politically. My own opinions about intellectual property rights are driven more by what can bring about genuine across-the-board collaboration than by the pros and cons of vaccine capitalism. Nonetheless, I also believe that the private sector and other non-state actors need to be constructively enabled as participants in this global collaboration.
Here are my personal views, and, as I did in the preceding commentary on “Whither COVAX?” that I am here updating, I include a number of useful citations at the end to illustrate the many different views on these issues of global and multi-stakeholder collaboration. I especially liked the analysis by Laurie Garett, a science journalist focusing on public health issues and supporting a waiver, but I also appreciated the views of the economist Jayati Ghosh and a fellow political scientist Mark Suzman.
Wondering about the Future
Clearly, the dramatic and sudden huge surge of COVID-19 outbreaks in places like India became and continues to be a crisis of global concern. At the same time, we have all become aware of the acute inadequacy of the vaccine supply for everyone, whether in India or elsewhere, other than the holders of nationally earmarked supplies in a few rich countries. In the context of this double crisis, I saw an inevitable shifting away from equity to crisis management, and from a globally coordinated response to a bilateral embrace of vaccine diplomacy. Whatever accommodations the US might be making to get behind an acceleration of available supply for the rest of the world, whether through releasing some of its own existing supplies or through accelerating more production of new supplies, was not likely to be managed through COVAX.
Furthermore, my wondering about the future of the COVAX Facility had been driven by the displays of vaccine nationalism not only in the United States (but especially there), but also in the European Union, the very instigator of the global response in the first place. Why, I asked myself, was the US not freeing up its vaccine supply for global sharing through COVAX? Money, yes, but vaccines, no. And why was the EU reportedly reaching yet another massive purchase on its own behalf, this time with the Pfizer/BioNTech vaccine? And of course, the crisis in India played its own role, too – with the Serum Institute, the major source of COVAX vaccines, understandably having to suspend any COVAX deliveries under orders from the Indian government to concentrate on vaccine distribution within India, thereby creating further disarray in the whole matter of global responsiveness?
Rereading the Tea Leaves
Well, the shock of the Biden announcement on the fifth of May certainly complicated my reading of the tea leaves. I may have dismissed as too far to the left the report of petitions and letters emanating from the likes of Senator Bernie Sanders and others with similar views in the House. Neither “my” senators from Virginia nor my favorite Presidential candidate Senator Amy Klobuchar were in the mix. Nor were any of the representatives I followed in the House. In contrast, the international credentials of groups like the Club of Madrid (former heads of state and Nobel laureates) or religious leaders carried more weight in my mind as a global reading of public support for the waiver. But in retrospect, I have to conclude that the domestic signs of support for a waiver of IP rights were clearly having their impact on their leader (i.e. President Biden) and his very diverse team in the White House.
My further speculation is that the pharmaceutical industry was not doing themselves any favors. Some of them did seem to have enlightened leaders – I was duly impressed with the emphasis on diversity and climate change at an appearance by the CEO of Johnson & Johnson Alex Gorsky at the Council on Foreign Relations and with the reports that the CEO of Moderna Stéphane Bancel had announced early on that his company would not enforce its own mRNA patent even though he also acknowledged that Moderna was not in a position to release the patented knowledge that it had licensed from others. The rest of the industry, though, seemed to emphasize that patents were not a relevant barrier to increasing production where the real barriers were raw material bottlenecks in supply chains and the scarcity of “highly specialized facilities” and people with the “right skills”. In their trade association statements, they also pointed at the rich countries (to whom they had sold their stocks) and the reluctance of these countries to share their doses with the poor countries. These were not entirely persuasive arguments. And although many of the companies had committed to controlling their prices during the pandemic, the absence of any clear accounting of their pricing structure and the media coverage on their increased revenues and even increased profits did not help, either.
Nonetheless, I am still hesitant to embrace the idea of a full-blown waiver of intellectual property rights as the answer to the current shortages and uneven distribution of existing vaccines. I do think it was the right move for the Biden administration to throw down the gauntlet and to authorize Katherine Tai to negotiate with the sponsors of the waiver proposal at the WTO on drafting a narrow vaccine-focused waiver. I am also impressed that the Bill & Melinda Gates Foundation, an outspoken supporter of IP in the past, has endorsed the idea of a “narrow waiver” under current circumstances.
I just don’t see the waiver idea as working to speed up or redistribute the existing supply for the COVAX Facility or anyone else in the short term. Nor in the intermediate term. On that point, my suspicion is that the possibility of a waiver is being used both to prod the pharmaceutical industry to be more supportive of speeding up their own capacity now to partner with developing country manufacturers and maybe even as a way to partner with the US government itself on expanding that manufacturing capacity. In that respect, it also gives some negotiating room for the WTO to adapt its TRIPS Agreement to the circumstances of the pandemic, much as it did once before to free things up for HIV/AIDS medicines.
The Impact of Divergent Views
Here are some other points to reflect on. Given the ideological division of political parties and public refusal by Republican legislators to consider bipartisan legislation, I think that the Republicans sending off their own letters in support of IP rights just made it impossible for the Biden administration to look like it was siding with the extreme right. In that respect, I think the Republicans did no service to the pharmaceutical industry. Second, I suspect that there is within the pharmaceutical industry and also among the strong supporters of the COVAX Facility a willingness to get a whole lot more done quantitatively and at cost to get past this pandemic. They might not be able to say it publicly, but they must be welcoming the threat of a patent waiver to get more done quickly.
It is interesting that the COVAX Facility published a letter supportive of the waiver – not as a statement of official COVAX support for the idea – but as the letter of a COVAX supporter. In this letter, by the prominent development economist Jayati Ghosh, the author asserts that many potential vaccine producers with the required facilities have so far been denied licensing agreements with the pharmaceutical companies. She also encourages the governments that have subsidized vaccine development to pressure the beneficiaries to do more licensing – and for these governments even to do some of their own production.
Finally, it is interesting that the Biden administration made this announcement without giving advance notice of it to any of its allies/past supporters of IP protections – the EU, Switzerland, Japan, Australia, etc. The EU responded quickly, following a summit over the weekend, to make it clear that the US should be helping with raw materials supplies, lifting export bans, and sharing their own doses, much like EU member countries have done. These were, said European Commission President Ursula van der Leyen, backed up by both President Emmanuel Macron and even more emphatically by Chancellor Angela Merkel, far more important than any patent waiver at this point.
Has it given us new hope for a revived COVAX Facility?! I was just as surprised as the rest of us when the news trickled out of the White House on May 4th to back up Katherine Tai’s readiness to negotiate a waiver to the intellectual property rights of pandemic vaccines at the World Trade Organization. It’s good that the new WTO Director-General Ngozi Okonjo-Iweala has welcomed this development. And one can hope that her previous closeness to the COVAX Facility, along with the cautious publication of that letter from Jayati Ghosh on the Facility’s website, will reinstate the centrality of a global response. One should not forget that both Gavi the Vaccine Alliance and CEPI had reiterated their support for patent rights – but are both closely aligned with the likes of the Bill & Melinda Gates Foundation and the Wellcome Trust, both of which are deviating from that position.
The big question will be what the US will do. I didn’t dwell on it before, but I do note here that the Biden administration does have quite a cacophony of competing voices on the pandemic front, and especially as it finally moves to address these global issues. There is Katherine Tai in charge of WTO negotiations, but there is also a State Department with its own designated pandemic coordinator (Gayle Smith), an ambitious new USAID Director in Samantha Power,, a skillful multi-stakeholder advocate in Loyce Pace at the Department of Health and Human Services, and the whole batch of pandemic gurus within the White House itself. No wonder critics are complaining about the lack of a coordinated strategy!
There is still a real danger that there will be a PEPFAR-like momentum to mobilize all those American resources for a US-controlled program of vaccine diplomacy that competes against the Chinese (and Russians). In a sense, what President Biden has done is to stimulate WTO members to negotiate a narrow waiver that combines with other WTO policy changes on supply chains and export restrictions to benefit global collaboration for a genuine expansion of vaccine availability. I am hopeful, too, that this collaboration will be multi-stakeholder as well as multilateral. The opportunity is there, Dr. Ngozi!
Statements and Announcements of Interest
The letter supporting the temporary waiver from Senator Bernie Sanders and 9 other Senators, 15 April 2021, available here
Statement from Ambassador Katherine Tai on the Covid-19 Trips Waiver, 5 May 2021, available here.
IFPMA Statement on WTO TRIPS Intellectual Property Waiver, 5 May 2021, available here.
PhRMA Statement on WTO TRIPS Intellectual Property Waiver, 5 May 2021, available here.
Business Roundtable Statement on Administration’s Decision to Support Waiving Important Intellectual Property Protections, 5 May 2021 available here.
Statement of Director.-General Ngozi Okonjo-Iweala on USTR Tai’s Statement on the TRIPS Waiver, 6 May 2021 available here.
Laurie Garrett, “Stopping Drug Patents Has Stopped Pandemics Before,” Foreign Policy , 7 May 2021 available here.
Mark Suzman, CEO of the Bill & Melinda Gates Foundation, “Why we focus on vaccine equity”, available here. 7 May 2021 available here.
Statement by President von der Leyen…on the US proposal (and other issues following the Porto Social Summit), 8 May 2021 available here
Jayati Ghosh, “Next Steps for a People’s Vaccine,” 10 May 2021, available on the GAVI website here.
Amanda Glassman and others, “Open Letter to the Biden Administration and US Congress Calling for Urgent High-Level US Leadership to Address
Escalating Global COVID-19 Vaccine Crisis”, 17 May 2021, available on the CSIS website here.
The White House, “FACT SHEET: Biden-Harris Administration is Providing at least 80 million COVID-19 Vaccines for Global Use, Commits to Leading a Multilateral Effort toward Ending the Pandemic”, 17 May 2021, available on the White House Briefing Room website here.
“Remarks by President Joe Biden on the Covid-19 Response and the Vaccination Program”, 17 May 2021, also available on the White House Briefing Room website here.