Yesterday, United States Trade Representative Katherine Tai announced that the Biden Administration would support waiving intellectual property enforcement requirements under the Agreement Trade-Related Aspects of Intellectual Property Rights (TRIPS):

This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures.  The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines. We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen. Those negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved.  

“The Administration’s aim is to get as many safe and effective vaccines to as many people as fast as possible.  As our vaccine supply for the American people is secured, the Administration will continue to ramp up its efforts – working with the private sector and all possible partners – to expand vaccine manufacturing and distribution.  It will also work to increase the raw materials needed to produce those vaccines.

Last week, President Biden announced plans to ship 60 million doses of the AstraZeneca vaccine and the materials required to India, which is currently facing one deadliest COVID-19 outbreaks of the pandemic. The United States’ support for the waiver will supercharge the fight against the pandemic across the world.

First introduced in October 2020, a pending resolution at the World Trade Organization (WTO) brought by South Africa and India would waive requirements for member states to enforce most intellectual property rights during the COVID-19 pandemic. A growing number of legislators in the United States have joined the countless activists, world leaders, public interest organizations calling for the U.S. to support the waiver. If passed by the WTO, it would be an effective tool to help countries bring their COVID-19 outbreaks under control by unleashing the drug manufacturing capacity of nations outside the U.S. The Niskanen Center is gratified that the Administration has officially joined their ranks and supports the relaxation of regulations that restrict vaccine supply and development.

“This is spectacular news, but it’s only the first step,” said Daniel Takash, Regulatory Policy Fellow at the Niskanen Center. “President Biden has made some comments about the sharing of “know-how” necessary to make vaccines, which goes well beyond intellectual property. Not only does this cover trade secrets and copyright restrictions, it includes the sharing of unprotectable skills and knowledge that will require active measures from the public and private sector to make them widely available. Unlike the waiver, which is simply the removal of a barrier to access, this would require active measures by the U.S. and other governments for which no expense should be spared. Between previous comments made by President Biden and yesterday’s announcement, I’m extremely optimistic about the potential for a Marshall Plan for technology transfer.”

“Vaccine manufacturing can’t turn on a dime and technology transfers don’t happen overnight, but they are effective and will remove some of the supply-side constraints on vaccine production,” said Takash. “But these same time constraints apply to vaccine distribution, with some saying that global herd immunity may not occur by 2022 or even 2024. Every day people across the world aren’t vaccinated leads to more death and more opportunities for the virus to mutate, making time of the essence.”

This double-barrelled approach is essential, astechnology transfers will provide India’s well-established pharmaceutical industry with the expertise needed to manufacture vaccines at scale. But intellectual property on the drugs themselves is only part of the equation. “Access to academic literature needed by frontline healthcare professionals and researchers alike is kept behind high paywalls and restrictions on “data mining” and other methods of data analysis,” says Takash. “The legal risks associated with running afoul of intellectual property restrictions are myriad, and the TRIPS waiver will remove the legal Sword of Damocles threatening those who can contribute far more in fighting COVID than they are allowed to do.”

The world’s largest democracy has stepped up to the plate in the past. During the HIV/AIDS crisis, Indian drug manufacturers contributed the lion’s share of affordable drugs to the developing world while brand-name manufacturers hoarded knowledge and kept prices for these life-saving drugs at prices beyond reach to those who needed them most. It’s time for the United States and the rest of the world to return the favor, and Ambassador Tai’s announcement is a major part of that.

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