A coronavirus vaccine must be accessible to all. EU leaders must ensure that patents do not put profits ahead of people, writes Marc Botenga.
Marc Botenga is a MEP for Parti du Travail de Belgique (PTB) and a member of the GUE/NGL group in the European Parliament.
After WWII, a spectre haunted the US and other parts of the world. Targeting and paralysing mostly children, polio devastated families globally. In 1955, Jonas Salk’s polio vaccine changed the world. When asked who got the patent for his vaccine, the American inventor smiled and said: “The people I would say. There is no patent. Could you patent the sun?” The polio vaccine was placed in the international market patent-free and the disease has now been eradicated in large parts of the world.
This was the right thing to do. In public health emergencies, patents or other intellectual property rights may stand in the way of accessibility, availability or production of vaccines or treatments. Nelson Mandela understood this better than anyone else when his country was hindered from effectively fighting HIV/AIDS due to the exorbitant prices of patented treatments. Patents hinder access to essential health technologies. Take the example of the pneumonia vaccine PCV13. Gavi, the Vaccine Alliance, financed a large chunk of the costs for its development yet patents made it too costly for many people, leading to hundreds of thousands of preventable deaths.
Another issue is availability. As the European Commission has admitted: “The European Union will not be safe until the entire world has access to a vaccine, and as such, the EU and its Member States have both a responsibility and an interest to make a vaccine universally available.” Intellectual property rights can limit the availability of a vaccine by banning companies from producing equivalent generic alternatives, even when no company has the capacity to produce sufficient vaccines. The Third World Network notes how in the US intellectual property rights have already been delaying and limiting production.
European leaders first seemed to acknowledge these concerns. Commission President Ursula von der Leyen promised that any future vaccine would be “our universal, common good.” Germany’s Angela Merkel and France’s Emmanuel Macron support the idea of a vaccine as a “global public good.” The European Commission has raised at least €9.8 billion for a Coronavirus Global Response.
Worryingly though, the recently published EU strategy for vaccines seems to have backtracked from this promise. The issue of intellectual property rights is all but completely evaded, while guarantees on purchasing costs were vague at best. Even the principle of pricing at production cost seems to have been discarded. If advance purchase contracts do not guarantee that much, the European Commission is basically proposing to subsidise shareholders’ profits with public money. Nevertheless, advance purchase agreements simply aim at getting the EU a piece of an insufficient cake. Rather than fighting for universal access and availability, the Commission accepts the possibility of shortages of a future vaccine, giving in to blackmail from pharmaceutical companies that threatened to prioritise the US market for the vaccine.
Limiting accessibility and availability while subsidising shareholders’ profits is not a way to face a pandemic. Pharmaceutical companies have been privatising and locking up the knowledge created through public funds or public research with intellectual property rights. This privatisation of public goods kills people by creating artificial shortages and pricing people out. That has to change. Luckily, the tools exist.
At the initiative of Costa Rica, the World Health Organisation established a COVID-19 Technology Access Pool (C-TAP). The pool is designed to gather pledges of commitment to voluntarily share COVID-19 health technology-related knowledge, intellectual property and data. The EU should start by formally recognising it. While C-TAP is a voluntary mechanism, the EU can condition public funding to participation in this pool for the benefit of all countries.
In case a vaccine is developed without EU funds, member states could use so-called compulsory licenses to give permission to a wide range of companies to manufacture and sell a medicine, like generic drugs, even if it is still covered by a patent. The mechanism is included in international property law, the so-called TRIPS flexibilities. Most European countries have patent laws allowing compulsory licensing. In order to facilitate this, the European Commission has to act on data and market exclusivity rules. These rules currently undermine the use and effect of national compulsory licenses by potentially blocking generics from entering the EU-market for up to 10 additional years. Several EU Regulations (816/2006, 933/2019) already contain exceptions, but only for export purposes. It is time to extend their scope.
We cannot afford to lose more lives because of some companies’ desire to treat our health as a profitable commodity. The European Commission has a historical opportunity and responsibility. If it fails to act, the results are expected. That is why, alongside a progressive alliance from across Europe, we have launched a campaign to make the Covid-19 vaccine a global public good. We all have the right to a cure.