Intellectual property needs to be rethought in a pandemic situation.

Gabriela Arguedas Ramírez[1]

The SARS-CoV-2 vaccination process has already begun in some Latin American countries. However, guaranteed access for most of the region's population will not happen for several months. Many people will even have to wait until 2022, despite the Pan American Health Organization's efforts to ensure a minimum level of free vaccination in 10 countries in the region. This means that 2021 may end up looking very much like 2020.

Our continent is, according to the World Health Organization (WHO), the region with the highest number of confirmed cases in the world. Four Latin American countries are among the 12 with the most deaths, and an analysis by Amnesty International places Mexico and Brazil among the countries with the highest number of healthcare worker deaths globally. Furthermore, the extended lockdowns in places like Argentina and Peru did little to mitigate the virus's impact. The pandemic has depleted human and material resources and exposed the fragility of our healthcare systems. Thus, without access to any of the vaccines approved by a regulatory health agency and without specific medications to treat the most severe cases of COVID-19, the future remains bleak.

For this reason, proposals like the one presented by the Costa Rican government to the WHO in May 2020 are fundamental. This proposal aimed to create a repository of technologies, data, and information of all kinds that could be useful in addressing the pandemic. The objective was for the holders of intellectual property rights to these technologies, including vaccines and new medicines, to voluntarily waive these barriers (i.e., intellectual property rights) so that this body of scientific and technological information could be made available to all countries, free of charge or at a nominal cost. In this way, each country could have put its scientific and technological sector to work adapting or improving these technologies to meet its needs. This ranged from the production of face masks to the manufacture of medicines or medical equipment.

Unfortunately, neither this nor similar initiatives proposed by other low- and middle-income countries were successful in the international community. In a widespread emergency like this pandemic, time is measured in lives.

In ethical terms, the principles of justice and the protection of the common good demand that we suspend, even if only temporarily, any barrier that slows down the optimal response to a global crisis such as that caused by COVID-19. For this reason, the resistance of certain sectors and countries to proposals that ensure greater equity in the production of and access to medical technologies to address the pandemic has been criticized by several human rights and health organizations, including Doctors Without Borders (MSF).

Gavi, the global vaccine alliance, launched the multi-billion dollar Gavi COVAX Advance Market Commitment (AMC) fund to subsidize the purchase of SARS-CoV-2 vaccines for low-income countries. The fund aims to accelerate large-scale manufacturing and distribution based on need, not ability to pay.

In addition to Gavi, the Coalition for Epidemic Preparedness Innovations (CEPI) – COVID-19 was formed with WHO support. While this coalition is more open and less committed to agendas that could lead to “vaccine nationalism,” doubts and criticisms persist regarding the organization’s commitment to global equity policies. MSF published an open letter to CEPI’s board of directors, requesting that they reaffirm their commitment to ensuring effective and equitable access to vaccines produced with their funds. CEPI made changes to its equitable access to vaccines policy, which do not clearly define the terms regarding pricing and intellectual property policies.

Let us also consider that this will not be the last pandemic of the 21st century. Globalization and the pressure on ecosystems and wild areas are increasingly causing zoonotic diseases, which can lead to human-to-human transmission, as happened with SARS-CoV-2. Given these circumstances, Latin America must prepare. It must learn from this pandemic, which is not yet over. One of the main lessons is that without science and justice, a successful response to such a severe crisis is impossible. Justice must be demanded at all levels, including fair access to knowledge and technology. The scientific and technological dependence in which much of our region finds itself deepens our vulnerability to a health crisis and leaves us almost defenseless.

A fundamental demand for justice, which must be a priority on the agenda of the region's states, is to raise the issue of intellectual property rights during the pandemic within the World Intellectual Property Organization, the World Trade Organization, and the WHO. There is an urgent need for a much more expeditious mechanism than the emergency licenses provided for in bilateral free trade agreements such as the Dominican Republic-Central America-United States Free Trade Agreement or the United States-Mexico-Canada Agreement.

Latin America has high-level specialists in the fields of bioethics, science, technology, human rights, and intellectual property, who could join together to prepare a common proposal that includes a mechanism to temporarily suspend intellectual property rights on medicines, vaccines, and other medical technologies that are indispensable in a pandemic.

[1] Professor of bioethics at the School of Philosophy of the University of Costa Rica, specialist in intellectual property, and international consultant on human rights. Member of the CLACSO Working Group on Feminisms, Resistance, and Emancipation. Article originally published in: https://www.washingtonpost.com/es/post-opinion/2021/01/05/vacunas-covid-19-america-latina-propiedad-intelectual/