16th March 2022 – In a landmark development yesterday, the European Union (EU), South Africa, India and USA are reported to have reached a compromise in long-running negotiations for a waiver on intellectual property (IP) rights for coronavirus products. However, it still needs agreement from EU member countries as well as other World Trade Organization (WTO) members.

Should it be agreed upon, the compromise will enable developing countries to authorise the use of a patented coronavirus vaccine without needing to seek consent from the patent’s owner. The solution is much broader than compulsory licensing, allowing countries to use means such as executive orders to ramp up vaccine production. But the scope of the agreement is limited to COVID-19 vaccines and omits tests, therapeutics and other drugs that India and South Africa sought to include in their initial proposal. The agreement also sets an eligibility cap on developing nations that exported less than 10% of global COVID-19 vaccine exports in 2021, which means China would not be eligible to waive IP rights for COVID-19 vaccine production.

For more than a year now, the Jesuit Justice and Ecology Network Africa (JENA) and like-minded governments, organisations and partners in the global south and north have been relentlessly working for a waiver on Article 28.1 of the TRIPS Agreement. TRIPS stands for the Agreement on Trade-Related Aspects of Intellectual Property Rights. Article 31 provides for waivers. “This welcome compromise for local vaccine production is a first step in taking action for social justice and, as the Holy Father Pope Francis has repeatedly said, informed by compassion for our shared humanity, putting people above profits and nations before corporations,” said Fr Charles B Chilufya, Director, JENA and coordinator of the Africa Task Force of the Vatican COVID-19 Commission. “The global south has the facilities to produce COVID-19 vaccines, and there are vaccine factories lying idle around the world, including in Africa. This waiver will partially redress the regrettable hitherto complete lack of humanity and immense moral failure that JENA and partners have advocated against.”

The positive development of this potential compromise could herald the start of a resolution to the debate that has been deadlocked at the WTO since October 2019.

“Currently, less than 15% of the population in low-income countries have been vaccinated,” clarified Fr Chilufya. “That is just an average. In many cases, the number of vaccinated people drop as low as 2 or 5%. Supply, and not hesitancy, is the sticky point. It does not help that some of the vaccines sent to these countries expire en route, or have an extremely short shelf-life by the time they land on African shores. Also, donating post-hoarding, close-to-expiry vaccines as has been happening is a dumping, and not a donation.”

If agreed upon, the compromise does not require that vaccines be predominantly for the domestic market, thereby enabling exports to other eligible countries. However, it falls short of a systemic solution and fails to go far enough, appearing to give with the right hand while taking with the left. Commenting on the proposed solution, James Love, director of Knowledge Ecology International, said it was “appalling” that the waiver was limited to vaccines. Love added that countries already have the freedom to allow the non-voluntary use of patents “even without prior negotiation with patent owners in cases of emergency or a pandemic.” Love also criticised the limitation to certain WTO members, saying it protects “American and European vaccine manufacturers from competition from developing country suppliers.”

These manufacturers and their rich governments should act like the Good Samaritan and help countries in the global south that have been left half-dead or are dying on account of the ravages of the coronavirus.

The time to show compassion and humanity is now!


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