After over a year of negotiation, the WTO (World Trade Organization) has finally agreed to a partial waiver of its TRIPS agreement covering patents. This will allow developing countries to manufacture Covid vaccines, but the deal falls far short of the demands of developing countries and non-governmental organisations (NGOs), and may well make tackling a future pandemic far harder.

The deal will let governments issue compulsory licenses to domestic manufacturers for the next five years, but it does not cover all Covid-related treatments and diagnostics, which is what South Africa, India and campaigners at NGOs were fighting for. Commenting on the deal, Max Lawson, Co-Chair of the People’s Vaccine Alliance and Head of Inequality Policy at Oxfam, said:

“This is absolutely not the broad intellectual property waiver the world desperately needs to ensure access to vaccines and treatments for everyone, everywhere.”

The final text that was agreed upon is just a “watered-down waiver”, according to Oxfam, of one small clause of the TRIPS agreement relating to exports of vaccines, but what is worse is that there are also new obligations in the deal not present in the TRIPS rules that will actually make it harder to manufacture the vaccines.  

The new rules require manufacturers to identify all related patents for the vaccines, which could prove impossible as vaccines are covered by what are known as complex “patent thickets” where patent rights overlap, and something not required under present TRIPS rules. In addition, a time limit (five years) has been put on the waived obligations, also not included in the previous TRIPS rules.

Lawson notes that these new obligations “could actually make it harder for countries to access vaccines in a pandemic.”

South Africa and India have led a 20 month fight to get a full waiver to enable developing countries to manufacture and access all Covid-related vaccines, tests, and treatments, all the while opposed by the EU, USA, UK and Switzerland, and the major vaccine manufacturers, Pfizer, Moderna, and AstraZeneca.  

Lawson criticised the developed nations strongly:

“The conduct of rich countries at the WTO has been utterly shameful. The EU has blocked anything that resembles a meaningful intellectual property waiver. The UK and Switzerland have used negotiations to twist the knife and make any text even worse. And the US has sat silently in negotiations with red lines designed to limit the impact of any agreement.”

Many have pointed out that the negotiations have taken so long that the final deal will not have a meaningful impact on the production of Covid-19 vaccines, as there is now a global glut of vaccines.  

The Indian Trade Minister, Piyush Goyal’s statement on his ministry’s website said “What we are getting is completely half-baked and it will not allow us to make any vaccines…..Vaccines have already lost relevance. It’s just too late; there is no demand for vaccines anymore.”

There has been criticism from the other side of the table as well, the Pharmaceutical Research and Manufacturers of America (PhRMA) called the waiver a “political stunt.” It called for a focus on issues like supply chain bottlenecks or border tariffs on medicines. However, the organisation has opposed any waiver, not just this one.

The lack of a waiver early on in vaccine development and manufacturer resulted in rich countries buying up all the early supplies, which became known as “vaccine apartheid” and profiteering, as companies made multi-billion-dollar profits, whilst fighting every effort to allow generic competition.

Although there may be a global glut of vaccines, a waiver that covers all covid-related vaccines, diagnostics, and treatments is still very much needed and is still being called for by many WTO member states and thousands of global health researchers, as Ronald Labonte, Professor and Distinguished Research Chair, Globalization and Health Equity, L’Université d’Ottawa/University of Ottawa, notes in his article in The Conversation.

The issue with this very limited waiver, according to Labonte, is that it sets a precedent “that will restrict the ability of countries with the capacity to mass produce therapeutics, diagnostics and even personal protective equipment. This would apply to the still-with-us COVID-19 pandemic and for any new zoonotic outbreaks that are almost certainly on the near horizon.”

Labonte adds that “without a meaningful waiver, new variant-ready vaccines expected later this year are likely to be gobbled up once more by high-paying rich countries, with the poorer ones left with older less-effective versions.”

It is not just vaccines, the new Covid therapeutics now entering the market will also be bought up by richer countries and as the waiver does not cover treatments, cheaper generic versions can not be produced in places like South Africa and India and low income nations will once again miss out.

Pfizer, the developers of the antiviral drug, Paxlovid has said it will allow licences for generic versions to be produced for distribution to 95 developing countries, but these countries will have to wait until 2023. 

Despite there being an excess of vaccine in the world, it is clear from data on vaccination rates that it is still not getting to where it is needed. Much of the world’s population has not received even a single dose, whereas the developed world is on to booster doses.

As of 21 June 2022, only 17.8% of the population of low income countries has received at least one dose of a covid-19 vaccine (low income defined as having a Gross National Income (GNI) per capita below US $1,045). This compares to 79.9% in high-income states (GNI per capita above US $12,696).

In April 2020, the Covax initiative was established to ensure fair access to Covid-19 vaccines worldwide.  Jointly administered by the World Health Organization (WHO), Gavi, the Vaccine Alliance, and the Coalition for Epidemic Preparedness Innovations, Covax planned to donate sufficient doses to vaccinate around 30% of the population of 92 low-income economies in 2021 and 2022, under its Advance Market Commitment (AMC) scheme. 

Promises poured in from the developing nations and at the G7 summit hosted by the UK in June 2021, G7 leaders pledged to donate 870 million doses to Covax by June 2022. This included a commitment by the UK to donate 100 million doses

It’s now June 2022 and recipient countries have received just under 30% of the UK’s promised commitment of £100 million, with a further 29% donated but not yet shipped, however that leaves 41% that has not yet materialised. The USA has shipped just over 26%, with some European countries performing better but still a long way behind on the promises, including Germany (52.6% shipped), France (51% shipped), and Italy (58% shipped).

Perhaps worse still, the UK has used its donations of Covid vaccines to reduce its Overseas Aid bill. An investigation by The Bureau and The Independent found that £100.4m was taken out of the UK aid budget to cover the cost of the surplus coronavirus vaccines sent abroad.

The reluctance of rich countries to donate vaccines, despite pledges to do so, is not the only issue with the COVAX system. 

In December 2021, The Lowdown reported on the challenges facing the Covax initiative. Reporting that the majority of the vaccine donations to-date had been ad hoc, provided with little notice and with short shelf lives, and as a result very difficult for countries to plan vaccination campaigns.

The African Vaccine Acquisition Trust (AVAT), the Africa Centres for Disease Control and Prevention (Africa CDC) and COVAX jointly called for the quality of donations to improve, with not just vaccine donations but other essential supplies, such as syringes. The countries need a predictable and reliable source of vaccine that can be used for a long-term sustainable vaccination programme.

It is clear from the disappointing situation with the Covax system, that relying on the generosity of the governments of rich nations was never going to solve the issue of Covid vaccination for Africa and every other poor nation. Which is why the TRIPS waiver was so important, but once again developing countries have been let down and millions of people are set to suffer. 


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