Last week, President Biden announced his support for a waiver on intellectual property at the World Trade Organization (WTO) to fight COVID-19. It’s known as the “TRIPs waiver,” for the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). It was not Biden’s idea. It was penned by India and South Africa last October. Neither expected that the United States would get behind it. No one thought things would get this far. India and South Africa are now joined with the U.S. in peddling a false narrative.
The draft, which is just over three pages, is long on preamble and short on details. The waiver calls for the suspension of patents, copyrights, industrial designs and trade secrets that are needed to combat COVID. The Biden administration will ask for edits, narrowing the scope of the waiver to vaccines, for example. This may alienate India, South Africa and others. And it may not be enough to appease Australia, Canada, Europe, Japan, Norway, Switzerland and the UK, all of which are opposed.
The debate is a heated one. As we witness the tragedy of COVID in India, it is time that we move past empty promises and find real solutions.
Proponents of the waiver argue that patents and trade secrets, in particular, get in the way of making generics. Critics demand that a lack of manufacturing capacity, not intellectual property, is the main problem. Although it is rarely allowed to speak for itself, the waiver says the challenges of fighting COVID go well beyond patents. But on patents, it expects more than the WTO’s provisions on compulsory licensing, arguing these are too time-consuming. Vaccine makers point out that they have concluded hundreds of voluntary licenses, lessening the need for compulsory ones. Proponents want more voluntary licenses, but vaccine makers worry this will compromise quality.
Let’s take a step back.
For the waiver to work, you have to believe that there are generics providers around the world that, with just a peek behind the intellectual property curtain, are ready to make vaccines based on complex technologies, like mRNA, and do so quickly. There aren’t, and they can’t. You also have to believe that suspending patents during COVID will not deter R&D spending needed to fight the next pandemic. It will.
In WTO meetings in January, India and South Africa asked countries that are opposed to the waiver to disprove the narrative on which it is based. This approach did little to inspire any confidence that the coauthors of the draft waiver think it will work. It won’t.
Moreover, India and South Africa co-authored another submission to the WTO in March, this one opining that specialized deals among a subset of members – known as “plurilaterals” – are illegal. So what? One could speculate that, along with the draft waiver, this was meant as a signal to the WTO’s new director general, Ngozi Okonjo-Iweala, that India and South Africa are forces to be reckoned with in future talks about reforming the institution. Both submissions are about influence, not proposing real-world solutions.
Then came Biden’s endorsement, which has given a new lease on life to a narrative that will not save lives. If the waiver is being used to leverage more voluntary licenses, it’s too much in pursuit of too little.
The seventh recital of the original waiver gets it right: COVID “requires a global response based on unity, solidarity and multilateral cooperation.” To this end, the U.S. and other countries should revamp the WTO’s Pharmaceutical Agreement, zeroing out tariffs and non-tariff barriers on all vaccines and other therapies. This would save more people from COVID and help prepare for whatever comes next.
Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service at Georgetown University, a nonresident senior fellow at the Atlantic Council and host of the podcast TradeCraft.