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Although the COVID-19 pandemic has wreaked terrible suffering across the world, we are fortunate that we already have several vaccines that have been shown to be highly effective in reducing the number of deaths and hospitalization rates. Discovering vaccines proved easier than expected, but ensuring that everyone – including people in developing countries – has access to them has proved much harder. The main reason for that is an intellectual monopoly: patents. Even though at least two of the main vaccines were developed almost entirely using public funds, which ought by rights to mean that the results are in the public domain, companies have obtained exclusionary patents on them. This has led to calls for a patent waiver of some kind to allow countries to produce their own supplies of medicines, without needing to pay licensing fees.
The proposal from India and South Africa to the World Trade Organization (WTO) does not mention patents at all, but lists instead what the waiver seeks to achieve: “the prevention, containment and treatment of COVID-19.” A paper from Sean Flynn, Erica Nkrumah, and Luca Schirru points out that works covered by copyright also need a waiver if we are to combat COVID-19 effectively. For example:
Researchers cannot contribute to COVID-19 responses if they cannot access the scientific literature they need to conduct their work. A global survey recently found that about 20% of researchers globally, and over 30% of researchers in South America (where copyright exceptions are the most limited), report that COVID has “completely” altered or halted their work.
Although some publishers did make publications relevant to COVID-19 freely available initially, the number of articles available is diminishing. Similarly, researchers need free access to material covered by copyright in order to carry out text and data mining, which uses computational analysis of large collections of material in order to reveal new insights. In fact:
The [Covid-19] outbreak was discovered by a Canadian text and datamining company, BlueDot, which tracks emerging health threats by analyzing “a variety of information sources, including chomping through 100,000 news reports in 65 languages a day.”
A less obvious problem caused by copyright concerns the labels and inserts that convey vital information about vaccines and drugs:
Even if a competing vaccine or treatment is lawfully produced with respect to patent law, there are opportunities for companies to use copyrights to halt or delay generic marketing. The issue arises because labels and package inserts – which convey information often required by regulators – may be considered protected by copyright in some countries. There is a history of pharmaceutical companies making such claims (ultimately ineffectively) in the U.S. A recent report by WTO and WIPO [World Intellectual Property Organization] explained that the practice of using copyrights to block generic production continues in other countries.
In each of these instances copyright is acting as an obstacle to the wider availability and use of vital medical interventions to people around the world. Hindering the ability to offer vaccines and treatments will inevitably lead to avoidable deaths from COVID-19. As well as granting waivers for patents, it’s long overdue for the authorities concerned to grant them for key material covered by copyright too. If they don’t, people in parts of the world without ready access to vaccines and treatments will have to conclude that saving their lives is regarded as less important than protecting intellectual monopolies.
Is Protecting Copyright More Important Than Saving Lives During The COVID-19 Pandemic?
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