Without India, a discussion on monopolies and how they impact the availability, supply, and access of medicines, vaccines, and other essential medical products rarely happens. The country — a key manufacturer and actor in global supply chains — plays a pivotal role in international negotiations at the World Health Assembly and the World Trade Organization.
‘Public interest’ standard
India did this early in the pandemic. Our government boldly endorsed a “public interest” standard — by submitting to the World Trade Organisation (WTO) with South Africa a waiver of monopolies based on a combination of patents, control over clinical trial data, and trade secrets on vaccines, therapeutics, and diagnostics to open up manufacturing of much-needed tests, treatments, and preventive tools in the COVID-19 pandemic across the world.
This proposal is known as the ‘Waiver’. It called for specific provisions of the agreement on trade-related aspects of intellectual property rights (TRIPS) to be waived temporarily by WTO members.
Both India and South Africa have a colonial history of inheriting an intellectual property system that did not serve their people at different points in time. At the turn of the century, South African AIDS activists, with millions losing their lives to the virus, challenged the excessive control and profiteering by pharma corporations who would not allow the importation of low-cost generic HIV medicines into Africa.
Indian policymakers had already, in the 1980s, articulated a vision for the future still applicable in the pandemic. India’s industrial policy of investing public money and developing technology in pharmaceuticals and reforming the colonial law at the time, making medical discoveries free of patents, made it a powerhouse in vaccine and drug manufacturing.
In this pandemic, both countries, now active members of the World Trade Organisation, had much to gain by suggesting reform of the IP system by stripping off its last century’s “exclusivity” dogma.
The underlying problem is that rich countries spend vast sums of money researching new products to address human suffering and extend life. Yet, the needs and lives of millions of people in developing countries are secondary and dependent on imports.
Thicket of monopolies
Access to technology by low-and middle-income countries is viewed as a constant threat, and their research contributions are either ignored or they receive little public attention. At the same time, the IP system creates a thicket of monopolies that block local production and generic competition against their pharmaceutical corporations.
India and other co-sponsors pushed a ‘commons approach’ so that a broader number of countries — rather than the current handful — could invest in manufacturing and developing technology to make vaccines, affordable drugs, diagnostics, and devices without facing IP barriers.
The proposal has seen unprecedented public attention, but the pushback from the pharmaceutical corporations and a handful of countries has been strong. Negotiations have dragged on for nearly two years. In the meantime, the U.S. pharma corporation Pfizer’s revenue has touched $100 billion, profiteering from the sale of the COVID-19 vaccines and antiviral drugs, mainly in rich countries.
The limited plan unveiled last month by the WTO Director-General Ngozi Okonjo-Iweala has been under criticism; some come from leading experts such as the Nobel Prize-winning economist Joseph Stiglitz and the head of the UN’s agency to fight AIDS. The limited plan is restricted only to vaccines, excluding therapeutics and other medical products, and also lacks teeth in many ways.
India stands at crossroads at this point. If adopted, the proposal in its current form could set a negative precedent for efforts to increase access to medicines, vaccines, and diagnostic tests now and in the future. India’s role in global health diplomacy at this point is crucial. It is part of the G-77, BRICS, and many such platforms, where it plays a leadership role on issues related to IP and access to medical products. The proposal and the WTO are fast losing credibility. Remaining silent in the negotiations ahead of the WTO’s upcoming ministerial on June 12-15 this year is not an option.
Text-based negotiations
Many experts and civil society believe no deal would be better than the proposal. Countries like India should hike up the pressure in the text-based negotiations among member states and the WTO secretariat to propose the text and aim to restore the original proposal that waived intellectual property barriers (not just patents) on all medical products for COVID-19. As one of the original sponsors of the TRIPS Waiver, it cannot walk away from this responsibility.
( Leena Menghaney is a lawyer with expertise in international relations, intellectual property, and pharmaceuticals. She works with the international humanitarian organisation Medecins Sans Frontieres – Access Campaign. All views expressed are personal.)
