It’s time for Canada to support the WTO TRIPS waiver

On May 5th, the U.S. announced that it supports the WTO Trade-Related Aspects of Intellectual Property Right (TRIPS) waiver of intellectual property protections on COVID-19 vaccines.

After months of silence from President Joe Biden, this was welcome news for the 100 other countries that support it and the millions of people across the world who have been advocating for months for a TRIPS waiver.

Hours later, New Zealand announced it would also support the waiver. Now, all eyes are on Canada. Canada, the EU, U.K, Switzerland, Japan, Norway, Australia and Brazil are the last countries standing in the way of the waiver.

Since the beginning of the pandemic, world leaders have repeatedly spoken of the need for global solidarity to get us all through this once-in-a-century health crisis. Prime Minister Justine Trudeau was among the first to call for global equal access to COVID-19 health technologies. But as time passed, calls for unity have been followed by a disappointing lack of commitment.

We can all agree we need to vaccinate more quickly and more equitably, and that current vaccine production is not up to the task. While it’s not a silver bullet, the TRIPS waiver would be a step toward realizing that goal and increasing the leverage that governments have to deal with the publicly subsidized BigPharma vaccine makers. Canada cannot stand in the ways any longer.

The crisis we are facing

In the early days of the pandemic, vaccine development and the initial scale up of manufacturing capacity happened quickly. But today we are facing a scarcity issue.

Corporate monopolies, supply chain barriers and vaccine hoarding have created this artificial scarcity. The global inequality of vaccine distribution is not a surprise—it has been predicted since the pandemic began. High-income countries rushed to secure enough doses to vaccinate their population several times over before vaccines were even being produced.

Canada has secured the largest vaccine portfolio in the world, with enough vaccines to inoculate our population at least 5 times over. As of the early April, high-income countries hold a confirmed 4.6 billion doses, upper middle-income countries hold 1.5 billion doses, lower middle-income countries hold 691 million doses, and low-income countries hold 670 million.

The thing is, we won’t be out of this pandemic until all of us are.

About the waiver

Despite a lot of lip service being paid to “the need for global unity” throughout this pandemic, the Canadian government has failed to live up to its call to action. This is especially clear in its actions at the World Trade Organization.

In October 2020, South Africa and India made a proposal to temporarily waive certain obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights until the COVID-19 emergency is over. The waiver would mean WTO member countries would not have to grant or enforce patents and other intellectual property rights covering COVID-19 vaccines, drugs, and other technologies, such as masks and ventilators.

With these barriers and restrictions removed, WTO member states, the scientific community and suppliers could work together without fear of litigation risk and trade sanctions under the TRIPS agreement.

The reality is, to meet the unprecedented global demands, solutions must alleviate immediate supply limitations. We must also establish conditions that allow for longer-term solutions to ensure manufacturing and supply capacity is increased and diversified. For this to happen, we must enable and develop local capacity across the world to independently contribute to a more sustainable global supply system, particularly in low- and middle-income countries.

Today, the main vaccine developers could openly share their IP and transfer know-how and technology, but, so far, this has not been the case. When the WTO encourages companies to have more licensing with other countries, they have no desire to do that because there is no profit imperative for them. In fact, over 100 lobbyists have been deployed to convince the U.S. government to oppose the proposed waiver. Yesterday’s decision indicates that the Biden administration is ready to put the health of billions of people above corporate profits. This is a powerful signal to Canada that it is time for them to do the same.

Global supply cannot be dependent on the business imperatives and exclusive rights of pharmaceutical companies holding the technology. Health imperatives and IP imperatives are not always in line, and in the case of this global pandemic, we can see this play out with the extreme inequality of vaccine access.

Some may say “what about COVAX?” Collaboration among the WHO, Gavi, the Vaccine Alliance, the Bill & Melinda Gates Foundation and others has built the COVAX program that is supplying vaccines to lower-income countries. It is not enough.

The system of COVAX is still seeing wealthy countries hoard vaccines. Production is still limited to the capacity of IP-holding manufacturers. While COVAX pledges to provide two billion vaccines across the world this year, it is nowhere close to enough to ensure herd immunity for low- and middle-income countries that are reliant on the program.

COVAX only ever promised to vaccinate up to 20% of their population and cannot be the only solution to global access. Importantly, this charity model cannot solve the fundamental disconnect between the pharmaceutical companies' monopolies and the calls from developing and least-developed countries to produce vaccines for themselves.

Canada was able to dither while the U.S. stayed on the sidelines of the TRIPS council meetings. But with Biden’s support of the waiver concept, Canada’s obstruction may grate on the nerves of the U.S. government.

By not signing onto the waiver, Canada is allowing large pharmaceutical companies to dictate the majority of the vaccine global supply and distribution system, competing for a limited supply and leaving billions of people behind in the Global South .

We could redirect that to combine efforts to help build global production capacity. The proposal at the WTO is an important step in creating the policy space to ramp up manufacturing, scale up, and supply COVID-19 vaccines and other technologies.

It may not be a silver bullet, but it is an important legal option that countries need in order to address legal uncertainties and barriers that may impede production and supply of medical products in advance. Temporarily waiving relevant intellectual property, which right now simply reinforces monopolies, is an important move and Canada cannot stand in the way.

Why flexibility isn’t enough

Canada is misleadingly claiming that existing flexibilities in the TRIPS Agreement, such as those for the issuance of compulsory licences to manufacture patented medicines, are sufficient.

There are a number of important safeguards already enshrined in the TRIPS agreement that countries can use to protect public health and increase access to medicines—though it should be noted that, for years, wealthier nations, such as the U.S. and in the EU, have discouraged developing nations from using flexibilities to protect the interests of pharmaceutical companies.

These flexibilities weren’t designed for a global pandemic and they aren’t enough. Flexibilities allowing compulsory licensing apply only on a case-by-case and product-by-product basis that can take years to settle with patent-holding firms or foreign governments. Responding to COVID-19 requires goods subject to exclusive patent and other IP claims and restrictions to become accessible and affordable now.

Early in the pandemic, a number of countries, including Canada, amended their national laws to make government use of compulsory license easier and quicker. So it's not that they shouldn’t be used, but they aren’t enough. We know that in unprecedented situations, we need extraordinary measures.

Why voluntary licensing isn’t enough

Over a year into the pandemic, this “business as usual” approach—premised on voluntary, secretive, limited licensing—has failed to leverage global expertise and capacity to scale up manufacturing and deliver equitable access. As it stands now, vaccine technology and knowledge are being treated as private property by pharmaceutical corporations, despite over $100 billion of taxpayers’ money going into the research and development of the technologies.

But as the Oxfam Health Policy Manager put it, “this is a public health emergency, not a private profit opportunity.”

The corporate priorities are clear. For one, they continue to reject C-TAP, the WHO-led initiative that was meant to be a place of sharing vaccine technology and know-how. Pharmaceutical companies and their pseudo-leader Bill Gates have gone as far as to call it dangerous. At a WTO gathering in early April, Pfizer and Moderna said they won’t share their mRNA technology-based vaccines with the vaccine firms in developing countries on the grounds that they are far too complex and require more than 100 raw materials. Which, beyond the obvious condescending nature and thinly veiled racism, is untrue.

More than two-thirds of the WTO members want access to these mRNA technology-based vaccines because of the untapped capacity that exists. Vaccine companies from the Global South, like Bharat Biotech from India and Aspen from South Africa, have expressed capacity. Further, the People’s Vaccine Alliance calculated that, over the past 12 months, Pfizer, Johnson & Johnson and AstraZeneca have paid out $26 billion in dividends and stock buybacks to their shareholders. It is clear the imperatives of the status quo that will not get us out of the pandemic.

Alternative ways exist

I have heard claims that “the private sector is more efficient” and leads to more innovation. But the evidence points to the contrary. In the first months of the pandemic we saw open science at work, leading to rapid innovation—made possible through public funding. And there are examples that show that without IP rights, a global network of vaccine research and production is possible.

For the past 50 years, the flu vaccine has been produced by a global network of medical professionals who monitor for emerging strains of a virus and periodically update the formula for vaccinating against it. They then make that information available to companies and countries around the world. As a network of laboratories in 110 countries, it is funded almost entirely by governments. It is done without any intellectual-property considerations, and without pharmaceutical monopolies.

The difference here is that the imperative is solely about protecting people, not profit. This opens up the capacity of developing and updating the vaccine and sharing that information with a network of producers.

It’s possible, there just needs to be a will.

A way to save lives

India is facing a heartbreaking wave of COVID-19, where thousands are dying and hospitals run out of supplies. Canada has promised to help with monetary and supply donations. But that isn’t enough.

We know that the waiver is not a panacea. There are certainly other challenges, like sharing know-how. But it would help break down barriers to scaling up the manufacturing and supply of lifesaving COVID-19 medical tools across the world. It would also build capacity for future pandemics, which public health scientists have warned us about.

The U.S. announcement signals that public pressure is working. People across the world know that it is morally unacceptable for rich-country leaders to allow a few corporations to sell a limited amount of vaccines to those who can pay while creating an artificial problem of scarcity by keeping the vaccine technology and know-how locked under patents.

Canada must be part of the global effort to save lives—not an obstacle. The Canadian government must support the TRIPs waiver now.