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Rethinking Trade - Season 1 Episode 30: Deep Dive: How WTO Rules Protect Big Pharma Profits

Millions of people around the world may not get COVID-19 vaccines until as late as 2024 due to World Trade Organization rules that protect medicine monopolies for the Big Pharma giants. What do these WTO rules require? How do they implicate access to essential medicines? How do countries escape these WTO-imposed barriers that protect corporate profits for vaccines developed with boatloads of tax-payer money?

On this episode, Lori gives us a guided tour through the thorny thicket of intellectual property monopolies, the “trade” agreement rules that oblige countries to enforce them and the WTO waiver needed to boost production of COVID vaccines, treatment and tests worldwide.

Learn more at rethinktrade.org.

Music: Groove Grove by Kevin MacLeod

Link: https://incompetech.filmmusic.io/song/3831-groove-grove

License: http://creativecommons.org/licenses/by/4.0/

Transcribed by Sally King

Ryan: Welcome back to Rethinking Trade where we don't just talk about trade policy, we fight to change it. I'm Ryan and I'm joined once again by our in-house trade expert, Lori Wallach. Lorie. Last week during one of our regular global trade watch meetings, you talked with us about some complex but fairly important details regarding medicine, patents, copyrights and international trade rules that impact vaccines and other medicines. This was in the context of the campaigning that we're currently doing supporting a call from over 100 nations at the World Trade Organization for a temporary emergency waiver to the WTO trips rules, which would increase global production of COVID-19 vaccines and treatments. So today, I wanted to ask you to basically give that talk again, only this time to our listeners. So if you're with me, let's take a deep dive into the world of pharmaceutical technology, patents, and copyrights.

Lori: The mission here is to get vaccines, treatments and tests to people in every country in the world. Because no one is going to be safe, the economy's not going to get back in its feet anywhere unless people are able to fight COVID everywhere. Right now there is the capacity to make about 4 billion doses of vaccine per year; 15 billion doses are needed. Governments have spent tens of billions of dollars giving it to pharmaceutical corporations to come up with vaccines. Yet the pharmaceutical corporations have monopoly control over aware how much, if the vaccines will be manufactured, where they can be sold, and at what price. And one part of the reason for this lunatic situation where dozens of countries have not had a single dose of vaccine. And many developing countries are not expected to have significant vaccination until 2024 is in part because of World Trade Organization rules in the trade-related aspects of intellectual property TRIPS agreement, these WTO rules require every signatory country to give very lengthy monopoly rights to corporations with respect to not just patents over say a medicine, but the copyright that goes to the computer program for the machine that makes the vaccine or that makes the ventilator work. And the design information about the machine that is used to do a key process and making the vaccine and what's called undisclosed information protections, which has both to do with some of the know-how about what needs to be done to make it work but also has to do with certain test information. And all of those protections are what South African and India now with 100 countries supporting them are asking is temporarily waived. So that those monopolies are suspended to the extent doing so is necessary to treat and to stop the COVID pandemic. And the campaign that's going on around the world is to get governments to support this because the WTO works by consensus. And so far the US has been one of the very few countries along with the UK, with Canada and the EU as a bloc that have been stopping this very important emergency change at the WTO and these trips rules, basically before have led to needless suffering and death. Because these extreme monopoly protections are the reason millions of people in Africa died in the 90s from AIDS. When in the US HIV diagnosis was the beginning of a chronic disease. You took antiretrovirals you had medical interventions that meant you could live a long life. And the US pharmaceutical companies wouldn't share the information. The countries in which these medicines were made fought what was then an effort to get these WTO rules suspended. And the result was millions of people died. Now in this circumstance, not only are millions of people going to die, but if we don't get this right, it's actually against our own national interest. Because if there is an outbreak of COVID any place where mutations can occur that is going to generate the variant that gets around the vaccines we've already had that puts us all back into quarantine that is more deadly but it's more infectious so really really for any of us to be safe we all need to get the vaccines the tests and the treatments.

Ryan: There's a few key terms and ideas and you talked about some of them just then Lori but maybe if you want to expand on a few of those that might help me and the listeners understand sort of the depth of what TRIPS covers when we think of medicine copyrights or medicine patent you think just oh the pill itself is patented you don't think that everything involved in dispensing it and storing it and all of these things is also covered maybe you could talk about some of that stuff and the differences between a patent and copyright when it comes to these kinds of laws. And then also i want you to get into talking about these compulsory licenses because that's a term that's being used a lot right now as some people are saying oh we can use compulsory licenses we don't need a trips waiver maybe you could talk about that and give us an understanding of what that even means how it works and if it's even applicable right now.

Lori: So one of the first things to know is that at the time i was describing with with the fight over hiv aids medications anti retrovirals typically those medicines had patents so a patents is a monopoly protection granted by a government it's like a license that protects an invention or discovery an idea effectively so if you created some new medicine and it wasn't it was what's called it's original it wasn't something someone else had done you can get this government monopoly right and a copyright protects original works of authorship so like for instance the way to think about how this comes together is at the time of the antiretroviral wto fight for hiv aids the medicines were basically protected by patents so at that time the fight was to make clear you could get what was called a compulsory license that is the ability for a government if a company will not allow a contract for a local manufacturer a monopoly patent holder you can force a license that's what a compulsory licenses you force a license and the license is literally the right to make that thing that is under the patent monopoly so let's just say I had the monopoly on come up with whatever it is medicine and you're in a different country Ryan and your country needs that you have come to me and say alright company and country a I would like this or I may be in the same country i would like to be able to make this medicine too and I would say, "Well I have a monopoly for 20 years it's a patent, go away I can charge as much as I want." And if you could prove an overriding national interest to health emergency etc, then you could go to the government say, "Hey, I've tried to get Wallach to give me this license I'm happy to pay for it but she ain't budging." And then they force it and they say, "I will grant you company, Ryan, a compulsory license to make company Wallach's drug." And the WTO fights in the early 90s was just to make clear that governments could do that because the big pharma interests were saying whoa under these WTO rules you can't even do that so the situation though got kind of more evil so the problem we have now is then there was a patent and then you would do a compulsory license if a company was being greedy. Now the companies that are what are called the originators so the companies that have made the product initially in this instance with the vaccines with literally tens of billions of taxpayer funds but related, but separate issue. So whoever has that intellectual property monopoly now their strategy has been to make what is often called a thicket of intellectual property protections. So instead of there being a patent on the medicine there is a patent on the medicine but then there is also a patent on the three precursor chemicals that were created that go into the medicine and then also the special whirlygig that you created which mixes up your components gets patented it's a machine and it's an invention and that gets patented and then you decide to make a special injector that is especially useful for this and can only your medicine can only be the shot can only be through your injector and that gets patented and then in addition your worldly gig is operated by a computer program and that gets copyrighted. And then also you have very specific rules about how the medicine can be transported and how it can be delivered and how it can be segmented and how it can be dosed. And that booklet gets copyrighted. And then in addition, you have a lot of know-how about the stuff that isn't just the recipe that isn't just here's how the machines engineering is done, that you try as these companies to get some kind of monopoly protection over as undisclosed information, you basically want to make it so it is basically nigh impossible for anyone to be able to make this but you so you control how much you control the prices. And these kind of IP thickets are what right now are like barbed wire around these vaccines. So that if these WTO rules that allow, that require all of these countries to have these rules in place, and allow this kind of mop monopoly protection, it will make it almost impossible for what needs to happen, which is production needs to be scaled up all over the world of these vaccines of these treatments of these tests. Because it's not just we need to get everyone vaccinated once it's going to be an ongoing process. And there is simply I mean, there's no way under the current paradigm, we are going to be able to get the volume, the supply, it's never the money issue. You know, a lot of the pushback from certain people in the US government officials in the US or EU is, "Oh, look, we're starting to give to these different funds that will be buying the vaccines for poor countries." And you know, it's good luck, there's nothing to buy, that's part of the problem, because the entire supply that exists is insufficient, and what is in existence has been already pre-ordered. So we have to have more made, which is why this WTO waiver covers the four different pieces of copyright because the compulsory license for a patent ain't gonna cut it, the thing that worked in the 1990s ain't gonna cut it. You have to have, to the extent it limits the treatment and crushing of COVID, you have to have temporary suspension, also of those copyright rules, as of course of the patent rules of the non disclosed information rules, you have to basically have the whole thicket, you have to have a very strong clipper to go through all that barbed wire and rip it out of the way. So more production can happen.

Ryan: How do these rules interact with our domestic laws? And what happens to them at the World Trade Organization?

Lori: So that's a very big kettle of fish generally, and as part of what is wrong with the WTO. But the short answer is the WTO has a requirement that is each country shall ensure the conformity of its domestic laws, regulations and administrative procedures, with the attached agreements. And that includes all those patents and copyright and other monopoly rules in TRIPS. So every country is obliged to have its domestic laws meet those rules. And if you don't, you can get hit with trade sanctions from another country. And also, frankly, without the blessing of the WTO, to have the changes that many countries want to make. Countries want to be able to help support domestic production, obviously, not every country can do it. But in every region of the world, there are companies in countries that could be making these vaccines and treatments and shipping in the region. And there's just endless stories of how having pharma monopoly control means no supply. There are just, you know, there's a company a very high tech company in Bangladesh, that's been begging all of the Big Pharma and Maderna and all the others to give them a license to be able to contract manufacturer, the medicine for distribution in Asia, the company that is currently having a contract with Johnson & Johnson in South Africa is obliged because Johnson & Johnson totally controls it, to export 91% of what they make to Europe, 9% can be sold in South Africa. So the keeping that monopoly control in your domestic law, when governments want to have the blessing of the WTO in the short term to take the policy changes without threat of sanction, but also effectively like the good housekeeping seal of approval, so that the pharma companies and other countries, don't threaten them with lawsuits, etc. Because you know, pharma can come into the domestic courts and say this is a violation of your obligations under the digit. They just need all of that cleared away, and honestly, also having the waivers enormous leverage, because there's been a lot of sweet-talking to Pharma, please do this please contribute that please share this and none of it's happened. None of it's happened. And so this is the stick, right? This is the stick this is if you guys don't start doing technology transfer, then we will use the rights under this WTO waiver to just do it on our own.

Ryan: Rethinking Trade is produced by Public Citizen's Global Trade Watch. To learn more you can visit rethinktrade.org, you can also visit tradewatch.org. Stay tuned for more and thank you for listening.

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