THE BURDENS OF EXCLUSIVITY

Brook Baker

Abstract: The world was unprepared for COVID-19 despite other recent coronavirus outbreaks and despite multiple warnings from the World Health Organization (WHO) and others. Although there was an initial sharing of research among scientists and an unleashing of significant public, charitable, and private funding to develop, test, and expand manufacturing capacity of new COVID-19-related medicines, vaccines, and diagnostics, the status quo of exclusive rights ownership and commercial control by the multinational biopharmaceutical industry continues unabated. Existing intellectual property rules that allow private entities to maintain monopoly rights over the development, clinical testing, regulatory approval, pricing, supply, and distribution of essential medical products have not been altered. And, the determination of rich countries to secure preferential and disproportionate access to proven and promising vaccines, medicines, diagnostics, and personal protective equipment remains unchanged. In place of open science and coordinated clinical trials, scientific rigor in regulatory assessment and broad regulatory approval, low-cost pricing and rational expansion of manufacturing capacity, and equitable global access to all needed COVID19 health products, we have needlessly high prices, inadequate supplies, and nationalistic hoarding, especially, but not exclusively, by the Global North.

Fortunately, there are multiple initiatives and proposals to counteract exclusivities, commercial prerogatives, and rich countries’ preferential access to existing and novel COVID-19 health technologies. These initiatives include more radical proposals to waive recognition and enforcement of COVID-19-related intellectual property rights (IPRs) at the global and
national level during the pandemic and to extend the general least developed country transition period for enforcement of IPRs. Other proposals focus on both voluntary and compulsory mechanisms to override IPRs, openly license, and facilitate technology transfer of coronavirus vaccines, medicines, and diagnostics. Several global partners have established
an accelerator to speed development and marketing of new COVID-19 tools and secure at least some supplies for low- and middle-income countries (LMICs). Finally, regional cooperation initiatives have been established.

Although there have been multiple initiatives and proposals to overcome industry’s exclusive rights and commercial prerogatives, these efforts have not resulted in the needed paradigm shift in global health such that lifesaving and enhancing health products are viewed as global public goods rather than as ordinary consumer products. Similarly, rich countries’ hegemonic hoarding of COVID-19 health products and inadequate global coordination mechanisms have left the imperative of equitable distribution of COVID-19 health products disarrayed, with the risk that twice as many people will die from COVID-19 than if vaccines were to be shared globally. We can hope that this dystopian stasis will be overcome, but it will take far more activism from governments, institutions, and civil society to dislodge the current lethargic response and intellectual-property/market fundamentalisms that leave our world fractured in responding to this modern day plague. This global pandemic needs a global response now and as a proving ground for future threats.

CLICK HERE FOR THE FULL PAPER: GEGI Working Paper 049 • 04/2021 – Boston University Global Development Policy Center.