As world leaders anticipate a rescheduling of the 12th World Trade Organization (WTO) Ministerial Conference, two recent papers shine an important light on what some countries plan to discuss: a waiver of certain intellectual property (IP) commitments in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for COVID-19 vaccines and therapeutics. IP flexibilities, affirmed by the Doha Declaration 20 years ago, have rarely been invoked due to the success of various mechanisms that deliver medicines to low and middle-income countries within the existing TRIPS framework, including voluntary licenses.  Moreover, compulsory licensing is often a deeply flawed means to increasing access to medicines. New papers from Eric Solovy and the Geneva Network work to highlight the legal and practical concerns surrounding proposals to reduce IP protections amid the COVID-19 pandemic.

Eric Solovy’s paper discusses how the limited recourse to the compulsory licensing system permitted under the Doha Declaration, as well as the limited use of compulsory licensing generally under the TRIPS Agreement, demonstrate that compulsory licensing is often a deeply flawed means to increasing access to medicines. Solovy emphasizes that nations were careful to limit such flexibilities around waiving IP rights, and stresses that proposals to reduce IP protection amid the COVID-19 pandemic may reduce the pace of collaborations that are essential to producing the billions of vaccine doses needed in the coming months, while leaving the world unprepared for the next pandemic.

The Geneva Network paper on TRIPS further underscores these points, and notes that by providing baseline intellectual property protection and enforcement standards, the TRIPS Agreement has enabled increased participation in the global economy and has facilitated access to new technologies, including the COVID-19 vaccines and therapeutics.

We’ve seen in real time the importance of IP protections in the ongoing development and manufacture of COVID-19 vaccines and therapeutics. IP incentivizes research and development investment and fosters voluntary collaborations through patent licensing and other means. Also, recent events continue to underscore that IP is not a barrier to access. South Africa, for example, has only used 19 of 30 million vaccine doses to date and is halting more shipments of vaccines.

The existence of a legally binding IP framework under the TRIPS Agreement has been fundamental to the success of both the research and development and the manufacturing scale-up of COVID-19 vaccines and therapeutics. IP protections have enabled dozens of research collaborations and manufacturing partnerships all over the world, often between competitors and across borders, enabling the develop and distribution of new vaccines and treatments in record time. As such, proposals to reduce IP protections amid the COVID-19 pandemic may reduce the pace of collaborations that are essential to continuing current progress, while leaving the world unprepared for the next pandemic.