Waiving intellectual property rights abroad to fight COVID would harm domestic IP industries

Intellectual property rights provide the legal basis for our innovation and creative economy. Simply put, strong intellectual property rights are why the United States leads the world in IP intensive industries like the life sciences, biopharmaceuticals, precision medicine, and diagnostics. Nothing better proves the global benefits of strong intellectual property rights than the numerous biopharmaceutical companies who have risen to the challenge of the COVID-19 pandemic.

These innovative companies have developed more than 800 global development projects to create vaccines, treatments and diagnostics launched around the world. Approximately half of these treatments were generated from American companies, and, significantly, about three-quarters are from small- and medium-sized enterprises. Unfortunately, disastrous, job-killing policies being pushed by liberal Democrats and the Biden administration would destroy this type of innovation, leaving America woefully unprepared to respond to the next global pandemic.

Right now, the World Trade Organization, under pressure from countries that regularly steal American intellectual property like India, is considering whether to temporarily waive IP rights in relation to the prevention, containment, and treatment of COVID-19. I am profoundly concerned about this proposal, and I am shocked that my Democratic colleagues would support policies that threaten American intellectual property.

There is a glut of misinformation surrounding this waiver, but none more pernicious than the mistaken belief that it will promote broader access to vaccines needed to halt the spread of this terrible pandemic. This is because we have a capacity problem, not an IP problem. The waiver will not spontaneously transfer the complex technical and logistical know-how to develop vaccines, nor would it generate the necessary infrastructure to distribute the shots safely and quickly. Poor quality vaccines being produced by underqualified manufacturers could have extremely negative consequences and potentially prolong the pandemic.

Compounding the problem with this proposed waiver is its overly broad scope; it is not limited to patents. The proposal seeks to waive all IP rights in relation to the prevention, containment, or treatment of COVID-19, including copyrights. However, as early as Jan. 31, 2020 — before the U.S. was aware that the pandemic would reach our own shores — publishers who are copyright owners of scientific, technical, and medical journals committed to making immediately accessible all COVID-19 and coronavirus-related publications for the duration of the pandemic. Moreover, there has been no evidence that copyrights are a barrier to accessibility of COVID-19 related scientific, technical, and medical information.

The waiver also suffers from an overly broad temporal application. It states that it should remain in effect “until widespread vaccination is in place globally” and a “majority of the world’s population has developed immunity.” A definition so nebulous would be nearly impossible to accurately quantify, essentially extending this waiver into perpetuity.

From a national security standpoint, I am deeply troubled by the Biden administration’s consideration of a waiver that would force U.S. biopharmaceutical companies to blindly hand over billions in IP — including not only patents and copyrights, but trade secrets as well — to India and China, two countries that lag in or totally lack in the development of mRNA technologies and applications. These technologies are not just used for COVID vaccines.

Their forced transfer would allow for the creation of entire industries in these countries that will compete with American companies in the development of cutting-edge health care technologies. This is hardly the type of policy that will promote and encourage American manufacturing and the creation and maintenance of good-paying American jobs.

The U.S. can and absolutely should do more to ensure these lifesaving vaccines reach underserved communities across the globe. However, this waiver will not accomplish that. Instead, the Biden administration could consider more public-private partnerships, facilitating voluntary licensing, and examine U.S. export policies to identify opportunities to expedite shipments. Despite my absolute disagreement with supporters of this waiver, I share their goal of widespread deployment of vaccines. The U.S. has long been a leader in humanitarianism and that should not change.

Yet, waiving intellectual property rights abroad would not hasten the end of COVID-19. It would harm our domestic IP industries, hand India and China valuable government-supported research free of charge and weaken the global IP system for decades to come. Just last week, in remarks before the Intellectual Property Owners Association (IPO) Spring Summit Daren Tang, Director General of the World Intellectual Property Organization (WIPO), stated that a strong intellectual property ecosystem was primarily responsible for allowing COVID-19 vaccines to “be brought to people in the fastest time in history.” I wholeheartedly agree, and I hope my congressional colleagues and the president will listen to him and not kill the very thing that is helping to end this pandemic and prevent the next one.

Tillis is ranking member of the Judiciary Subcommittee on Intellectual Property.