Equity and technology in the pandemic treaty

Waiver rationale

Waiving intellectual property rights during a pandemic is a simple act of responsible policy making—necessary but not sufficient. When a pandemic hits, the world has no time to lose developing as much medicine, vaccine, and diagnostic capability as possible to stop it. Yet pandemic related products are covered by dozens or even hundreds of patents and other intellectual property protections, creating a legal monopoly for producers. Industry groups insist this is not a problem. But scientists working to set up an mRNA manufacturing hub in South Africa found patents slowed efforts to build factories and secure investment.11

The obvious solution is that when a pandemic is declared, a waiver on intellectual property comes with it. A waiver does not cancel patents or take away intellectual property rights. It simply returns policy making to national governments, temporarily suspending global rules so each country decides its own policy during the pandemic. Waivers in general are standard, regularly used mechanisms in international trade law.1213

A fairer system

During covid-19, mRNA vaccine producers made most of their sales and profits in high income countries.14 Even though these governments sometimes limit patents to help their own companies produce needed products,15 they usually enforce pandemic patent monopolies, waiver or not. So incentives to innovate change little in these markets. Some African, Asian, and Latin American governments might suspend patents in a pandemic to facilitate manufacturing for their populations. But multinational pharmaceutical companies showed that these markets are not valued by refusing to prioritise their covid-19 orders.16 Diversifying production is necessary. To work, the pandemic treaty needs stronger, not weaker language—committing simply to waive intellectual property rights in a pandemic, not as the current draft suggests, sending the question to the World Trade Organization, where we have seen institutional design and political interests block rapid action.17

Waivers are just one part of what is needed for the next pandemic. Governments should commit to actively sharing pandemic technology such as knowledge needed to make vaccines and treatments. The current draft commits states to share government owned technology, which could be important. Beyond that, however, the text only obligates states to “encourage” and “coordinate with, collaborate with, facilitate and incentivize” companies to share know-how. Even that is only on “mutually agreed terms,” despite the experience during covid-19 that companies simply refused to agree any terms. Governments and civil society in low and middle income countries have noted this weakness.18

Instead, the treaty should include commitments to condition research and development funding on sharing technology and know-how with low and middle income countries and, more broadly, transform the research and development ecosystem to place equity at its centre.19 Countries should commit to using their national legal authority to compel companies to share technologies in a crisis; create predictable arrangements for accessing pandemic research and development results; fund coordinated building and maintenance of production capacity in low and middle income countries; and establish a right to access scientific knowledge to fight pandemics, similar to the biological weapons convention.20

Recent pandemics have been so destructive in part because of failure to share technology. A new pandemic agreement could overcome this—but only if governments ignore industry’s misleading framing and make bolder commitments to act in the interest of public health before and during the next pandemic.