No one is safe unless everyone is safe. This, in gist, is the rationale behind the proposal of India, South Africa and other developing countries for a “TRIPS Waiver” under the World Trade Organization’s (WTO) agreement on Trade-Related Aspects Intellectual Property Rights or TRIPS.
The Covid-19 pandemic has bared the global reality: the health of one depends on the health of all. This means all countries should exert efforts to attain “herd immunity” for their populations. Otherwise, the virus, which has been mutating, will continue to circulate endlessly, flaring every now and then in different parts of the world. Hence, it is critical that all countries should have access to vaccines and medical products such as test kits, protective equipment, ventilators, therapeutics and medical devices that are needed to treat, prevent and contain the virus.
The problem is that there are barriers, “intellectual barriers,” in accessing these vaccines and medical products. Under the TRIPS agreement, industrial and pharmaceutical products traded around the world are subject to the protective rules of TRIPS on patents, trade secrets, copyrights and industrial designs. TRIPS is some kind of an aberration under the WTO umbrella of trade agreements. TRIPS provides utmost “protection” to the global trade players such as the multinationals while the rest of the WTO agreements seek maximum “liberalization” of markets for goods and services.
The proposed TRIPS Waiver means exemption of developing countries from the protective rules of TRIPS. Specifically, they shall be allowed to avail themselves of TRIPS “flexibilities” such as the “compulsory licensing” or manufacture of patented vaccines and medical products as well as the right to undertake “parallel importation” of the above from another source without the consent of the patent holders—all in the name of public health.
The Philippines used the above “flexibilities” in 2008 when it passed the Cheaper Medicines Act, a law that helped spur the growth of the generics industry and enable local manufacturers such as UNILAB to produce cheaper medicines. Eventually, some patent holders themselves teamed up with local producers in the manufacture of some drugs.
As a backgrounder, the enactment of the Philippines’ Cheaper Medicines Act was not easy. It was pushed by the Fair Trade Alliance and a health sector coalition called the Ayos na Gamot sa Abot-Kayang Presyo (AGAP). The cheap medicine legislation was fiercely opposed by the lobby group of the big foreign pharmaceutical industry. This, however, did not stop Congress from passing the law because then DTI Secretary Mar Roxas and the Macapagal-Arroyo administration saw the need to lower the atrocious drug prices in the Philippine market, which were 500 percent higher or more than those obtaining in India and Thailand.
But if there are “TRIPS flexibilities,” why bother to have a “TRIPS Waiver”? Trade Justice Pilipinas explains that using these flexibilities means hurdling difficult barriers erected by the big pharma industry. The issuance of compulsory licenses is done in a complicated country-by-country and case-by-case basis, with the patent holders usually applying all types of pressures and raising various legal arguments to prevent a developing country from having a compulsory licensing arrangement in a timely manner. Productive production collaboration between countries, for example between Indonesia and the Philippines or India and Thailand, also becomes extremely difficult, if not impossible. This at a time when all-out solidarity among countries and among peoples are most needed!
This brings us back to the present reality on the global vaccine situation. There are glimmers of hope that the world has now the antidote to combat the virus. The problem is that there is a huge disparity in the accessing of vaccines and medical products. According to the Third World Network (TWN) of Penang, Malaysia, high-income countries, accounting for 16 percent of the world’s population, have claimed 4.2 billion doses of the vaccines compared to 2.5 billion doses available to the 84 percent of the world’s population. One country, Canada, was even reported to be capable of administering 10 vaccine jabs per citizen.
TWN wrote:
“Global vaccine supply is presently dependent on a few pharmaceutical companies including Pfizer, AstraZeneca and Moderna, yet they are unable to meet global demand, even for rich countries. This situation is unsustainable and unacceptable. In a global health emergency in which substantial amounts of public funding have driven the research and development, it is simply unconscionable that these few pharmaceutical companies will benefit from their intellectual property monopolies while the world is suffering.”
In the light of the foregoing, it is incomprehensible why government frontline agencies—DOH, DTI, DA and DFA—have been hesitant in expressing support to the TRIPS Waiver initiative of developing countries. They have adopted a timid posture by advancing a weak argument: The WTO’s TRIPS flexibilities are enough. They are not, as outlined above.
If these agencies do not want to adopt the proposed TRIPS Waiver, they can push for another initiative that is equally significant policy-wise. Instead of negotiating on the supply of vaccines, our agencies can ask China and Russia to share with the Philippines the vaccine technology of Sinovac and Gamaleya Institute, all in the name of friendship and solidarity. And all this still within the framework of TRIPS.
Is this doable? Why not? UNILAB, which has manufacturing facilities in several countries, has the sophistication and the means to be their production partner. The point is that a technology transfer of this nature shall be the best proof of friendship and people-to-people solidarity between the Philippines and China and the Philippines and Russia.
Dr. Rene E. Ofreneo is a Professor Emeritus of
University of the Philippines.
For comments, please write to reneofreneo@gmail.com.
