On Wednesday April 14, 2021, the World Trade Organization hosted an event titled “COVID-19 and Vaccine Equity: What can the WTO contribute?” which featured three sessions concerning vaccine distribution, manufacturing, and looking forward at how the system could better address this and the next pandemic. KEI Director James Love was invited to speak at the third session. The entire event was closed and held under Chatham House Rules. Mr. Love has chosen to make his comments available below.
Thank you. My name is James Love, I direct a non-government organization, KEI, that has focused on both innovation and access, as well as transparency.
The COVID-19 crisis has illustrated a number of flaws in the current system.
I will focus on issues where the WTO can have a constructive role.
There has been an appalling lack of transparency, including regarding the agreements to subsidize and de-risk the research and development of vaccines, as well as procurement contracts and licensing agreements.
WTO agreement patent flexibilities have been used in some cases, but many countries have laws poorly equipped to deal with pandemics, vaccines or biologic products, and the provisions in the agreement on exports are flawed.
And while it is possible to issue a compulsory license on patented inventions, there are few national laws and no global agreements on providing access to manufacturing know-how, working cell lines and rights in test data. On manufacturing challenges, each platform, and there are several, presents different issues. Some are much easier and faster to scale than others.
Going forward, KEI recommends the WTO and its members undertake seven measures.
- Transparency of contracts. We support the IMF proposal on this issue. Also, we urge greater transparency of R&D costs, vaccine revenues and the number of units distributed.
- Revisit the flawed 31bis solution on exports. Articles 31.f and 31.bis of the TRIPS are protectionist and designed to harm developing country producers. The WTO can resolve the question of whether or not a WTO member can opt-back in as an importer under 31bis of the TRIPS agreement. More generally, during a pandemic, there should be no restrictions on the ability to export a useful product under a compulsory license.
- Model Exceptions. The WTO can work with the WHO on model patent exceptions for emergencies. In the early days of the pandemic, Germany and Canada modified their patent laws, but other countries did not, even when domestic laws were poorly suited to address such an emergency, in many cases requiring complicated, inappropriate, and time-consuming measures to be undertaken, in contrast to the more robust measures in the German Act.
- Sharing know-how. One very significant disappointment was the failure of governments to include in R&D funding agreements measures to require the sharing of manufacturing know-how and access to working cell lines and rights in data. The WTO can work with the WHO to develop initially soft norms on how such know-how sharing provisions should be included in R&D funding agreements.
- WTO Agreement on the Supply of Public Goods. As the WTO Director-General has rightly noted in her inaugural press conference on February 15, 2021, the pandemic is part of the larger challenge of supporting the global commons. The WTO has been asked to consider a new agreement, based in some ways on the GATS, to create voluntary offers of binding commitments to supply public goods. The response to the COVID-19 crisis would have benefited if such an agreement had been in place.
- Buyouts of know-how, while not the best option last year when governments were funding R&D, today should be given consideration. https://jamie-love.medium.com/buying-know-how-to-scale-vaccine-manufacturing-586bdb304a36
- One more thing, there should be no sanctions on Cuba that relate to the development and distribution of its two promising vaccine candidates.