Author: Guillermo Rodrigo Corredor, Professor Department of Economic Law-Externado University of Colombia – Assistant researcher UniDistance Suisse
The technological stocktaking for developing countries after the pandemic is quite ambiguous. Although the crisis was stopped using state-of-the-art vaccines that reached the most disadvantaged and remote places in record times, effective access to the new technologies that became available to curb the pandemic is, at least for the time being, less spectacular.
Indeed, if we look at the expenditures that those countries had to incur to secure access to the goods and services necessary to cope with the current (post) pandemic emergency, we will discover very quickly that these costs comprehend a very important component aimed at remunerating the exclusivity protected through intellectual property rights, through which, the technological leadership that industrialized countries has been consolidated.[1]
A good starting point for taking stock of the pandemic episode should be to take as a reference only those results that could be considered as an optimal functioning of the global intellectual property system, i.e. the material realisation of the principles and objectives of the TRIPS Agreement which, under normal conditions, should contribute to the development of technological capabilities as a result of the interaction of actors within the market.[2]
From such a perspective, it would have been normal and logical that developing countries, in addition to having overcome the crisis, would now be in a better position to shape technological solutions supported by their national science, technology and innovation systems. Such a genuine transfer of technology could then allow them to be more autonomous or even in a better position to cooperate with other States or companies in contexts of new and/or imminent global health crises.
Hence, recital 24 of the Ministerial Declaration on the WTO Response to the Covid-19 Pandemic and Preparedness for Future Pandemics, adopted on 17 June 2022[3] opened this posibility in the following terms:
24. The relevant WTO bodies, within their areas of competence, and on the basis of Members’ proposals, will continue or initiate as soon as possible the work of analysing lessons learned and difficulties experienced during the COVID-19 pandemic. The General Council shall take stock of the work carried out by WTO bodies under this Declaration every year until the end of 2024, on the basis of reports from those competent bodies. [4]
But above all a stocktaking exercise is important as it allow lessons learned to be drawn. In this regard, the current experience of some developing countries willing to take advantage of the momentum of the (post) pandemic, to undertake bold investments directed to shape endogenous technological capacities, are challenged – when not suffocated – by barriers arising from traditional licensing schemes embedded in maximalist rationale.[5]
Against this backdrop of increasing difficulties, the challenge seems to focus on achieving a conceptual reconfiguration of the licenses scope, allowing these legal devices to go beyond their mere role of value extraction means. Only by bringing technological advances closer to the capabilities and needs of the territories where patents are licensed we could ease the realisation of an effective technology transfer.[6] Of course, it is time to recognize the important role of licensing in technology-related trade. But it is also the opportunity for these legal devices to enable the participation of local institutions and scientists, to encourage genuine access to knowledge.
[1] See: “Direct Monetary Costs of Intellectual Property for Developing Countries”, (Geneva, South Centre, 2022) available at: https://www.southcentre.int/wp-content/uploads/2022/03/SC-Report-DIRECT-MONETARY-COSTS-OF-INTELLECTUAL-PROPERTY-FOR-DEVELOPING-COUNTRIES-FINAL.pdf
[2] Article 7 of the TRIPS Agreement provides a context for interpreting access to technology by stressing that IPR protection and enforcement should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to balance rights and obligations.
Article 8 recognizes the right of WTO Members to adopt domestic measures to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are “consistent” with the TRIPS Agreement.
[3] See: Members meet with external stakeholders to advance discussion on expanding the TRIPS Decision Available at: https://www.wto.org/spanish/news_s/news23_s/trip_15jun23_s.htm
[4] See: Ministerial Declaration on the WTO Response to the Covid-19 Pandemic and Preparedness for Future Pandemics, adopted on 17 June 2022, (Geneva, WTO, 2022) available at https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=s:/WT/MIN22/31.pdf&Open=True
[5] See: “Science Held Hostage: How Pharma is Using mRNA Vaccine Contracts With Government to Delay Future Innovation” (PrEP4All Prevention Equity Alert – April 2023) available at: https://static1.squarespace.com/static/5e937afbfd7a75746167b39c/t/643ee03ce3538e2bb5d925bf/1681842236736/PrEP4All+Prevention+Equity+Alert+-+4-2023.pdf
[6] See: Yang, G., Maskus, K. (2005) Intellectual Property Rights and Licensing: An Econometric investigation, in Intellectual property rights and development: lessons from recent economic research, Washington, World Bank & Oxford University Press. p. 111-133.
