10 Mai 2021

The World Turned Upside Down

The US, Bill Gates, and Individualizing Responsibility for the COVID Vaccine

In the past two weeks, we have witnessed Bill Gates reassure the public that we do not need to break international intellectual property rights to ramp up COVID-19 vaccine production programmes and the United States government admit that we do. I have a general rule of thumb: when U.S. foreign policy is more progressive than you, you are not a progressive humanitarian. In this post, I explain why Gates’ broader approach to the Covid vaccine is deeply problematic and why TRIPS needs to be broken (not simply waived) with regard to biomedical technology and research.

Gates’ Attempt to Individualize a Structural Problem

A few weeks ago, Gates suggested that all we need is more money and a little patience because once the U.S., U.K., and others work through their own vaccination programmes, they will ship their leftovers to the rest of the world, solving serious delays with COVID-19 vaccine production and distribution.

But, hallelujah, the Bill & Melinda Gates’ Foundation announced later that week that they had found the solution to the lack of supply: you. And me. And a lot of other individuals operating on our own without any real structural change to the status quo.

Gates’ charitable foundation and the World Health Organization (WHO) launched the app ‘GoGiveOne’ where you can donate money to ensure ‘vaccines for everyone, everywhere’. It sounds like an opportunity for individuals to respond to the crisis. I, like many, have no ability to create, distribute, or administer a vaccine but with just USD $ 5, I can donate a vaccine! (GoGiveOne does not explain why it costs USD $ 5 per vaccine when the European Union will pay only USD $ 2.15 for the AstraZeneca vaccine.)

It is a brilliant sleight of hand that magically turns a structural problem into an individual responsibility. If I care about India, I can save it. I can incur the financial responsibility of this vaccine (so that the manufacturers can pay their shareholders over USD $26 billion in a single year). And I can prove my superiority to you if you don’t donate, too.

But the WHO does not actually need my $5 or yours.

What it needs is structural reform.

As Oxfam has revealed (summary), the wealth gained by the 10 richest men during the pandemic could fund vaccines for all and prevent the most disastrous economic impacts of the pandemic. By taxing excess profits made by just 32 corporations, the world could have raised $104 billion in 2020 to fight the pandemic.

The world does not lack the financial resources needed to fight Covid-19. It does not need your $5. It needs appropriate taxation and a better allocation of resources.

But by individualizing the responsibility for COVID-19, Gates and the Gates Foundation are able to avoid structural change. It is a tried-and-true approach for governments and wealthy elite when needed reforms would harm their own financial or political interests.

We have witnessed it with climate change. Twenty firms are behind one-third of all carbon emissions. Rather than a targeted tax to ensure Chevron pays for its 43.35 billion tonnes of carbon emissions, I am told it’s the average American’s 16 tonnes a year that is the problem. If I truly cared, I’d pay to offset the 2.2 tonnes a year I contribute by flying home to see my family.

We have also witnessed it with human rights in agricultural and retail supply chains. Those knowledgeable about the workings of complex supply chains have long advocated for effective and enforceable regulations. Instead, governments and businesses have shifted responsibility to individual consumers to shop ethically. This has resulted in widely ineffective and largely unregulated ‘certification schemes’. Meanwhile, as a study from the German government demonstrates, businesses simply ignore all the human rights related harms they cause or contribute to.

Individualizing a structural problem prevents any real solution to it.

Now, we are seeing the same approach with GoGiveOne. By explicitly telling you that you are responsible for solving the COVID-19 vaccine shortage, GoGiveOne is implicitly telling you that you needn’t join the South African, Indian, and now US governments in demanding for a waiver to intellectual property rights arising under the international intellectual property treaty TRIPS.

The Imbalance Caused by TRIPS

TRIPS represents the single greatest, structural barrier to fighting COVID. It allows companies to control with whom and under what conditions they will share their patented vaccines and related technology. This reduces scientific research from a robust and collaborative regime to a secretive and competitive one.

The potential harm is evidenced in a patent challenge against Pfizer over COVID research. Allele Biotechnology and Pharmaceuticals, Inc., has accused Pfizer, BioNTech and Regeneron of infringing on a patent for an artificial florescent in the development of COVID testing and treatment. If true, Allele could have prevented Pfizer, BioNTech and Regeneron from effectively researching COVID-19 treatments. The defendant companies deny the breach, but even if they had: should we allow Allele to prevent others from effectively investigating and developing responses to COVID?

TRIPS creates the conditions by which pharmaceutical companies can hold their drugs ransom in exchange for unreasonable demands and price-based competition.

Pfizer tried to demand that South Africa put up its sovereign assets as collateral against future legal claims. The agreement would have meant that the South African government – who is clearly not profiting from COVID – would bear the financial burden for any negligence or defects rather than the company responsible for the vaccine’s production. Pfizer, by the way, is expected to make approximately USD $ 50 billion from the crisis between 2020-2023.

The US and the UK highly subsidized the development of these vaccines but still they will pay more for AstraZeneca than the EU. Pharmaceutical companies gave the EU a discount in exchange for silence on the price it will be paying for the vaccines. That silence was costly for other states. South Africa will pay twice as much as the EU for the AstraZeneca vaccine. These price differentials are particularly confusing since AstraZeneca had pledged to not profit from the vaccine during the course of the pandemic. Then again, at least one of AstraZeneca’s contracts provides that the pandemic will be over by July 2021 and only the company unilaterally can determine otherwise.

While TRIPS never explicitly grants Pfizer the right to demand South Africa use sovereign assets as collateral – nor for AstraZeneca to unilaterally declare a pandemic over – it implicitly does so by allowing the companies to choose with whom, and under what conditions, they will share patented information.

Consequently, we are seeing a large-scale, intentional transfer of wealth from those vulnerable to COVID-19 to those who can profit off it. If it had been done in reverse – had we taken from the pharmaceutical companies to give to the most vulnerable – it would condemned as class warfare.

Waiving TRIPS is a Good and Safe Solution

Waiving TRIPS is a good, safe, and necessary structural solution to our global vaccine production needs. But some with a vested interest in the status quo will try to convince you otherwise.

Some argue that TRIPS already provides the necessary flexibility to respond to COVID.

That’s simply not true.

TRIPs allows states to issue compulsory licenses, meaning they can allow a company to produce a patented product without the patent owner’s consent. This can be used for domestic use, not for export, and does not allow for the global cooperation necessary to scale up vaccine production and distribution.

Some trade experts will tell you that TRIPS is the only way to protect global public health. Waiving TRIPS would mean no one would want to invest in vaccine research and protection for this crisis or any future one.

I don’t believe that, but if you choose to it’s important to remember that TRIPS was only successful because it allows for a waiver in situations like this. Do these trade experts really believe that governments would willingly hamstring their ability to respond to a global pandemic that has killed over 3 million people in just over a year and that has shrunk the global economy by 4.4%?

Probably not.

But they want you to.

When this defence fails, TRIPS-apologists argue that the technology simply cannot be shared widely. Only big, Western pharmaceutical companies can accomplish what we need. In his Sky interview, Gates suggested scientists and manufacturers in places like India were ill-equipped to safely produce the vaccines without his help. A TRIPS waiver would provide no real benefit and would simply reduce the reliability and safety of the vaccines.

Gates provided no information or evidence to support this claim.

Because none exists.

As Tahir Amin has outlined, this same argument has been used in the past with regard to other drugs and scientists and manufacturers in places like India have been able to keep up with the advancements in technology just fine. They might not have benefitted from the public financing that companies like Pfizer, AstraZeneca, and Moderna received but when given the opportunity, they are able to match those companies’ outputs.

Should You GoGiveOne?

There is no reason not to waive TRIPS in this crisis. Efforts to suggest otherwise are disingenuous and aimed at retaining a status quo that serves no legitimate public health interest.

Unfortunately, we are still waiting for the EU, Brazil, and Australia to recognize this. In the meantime, we will watch as India continues to post record (perhaps underreported) numbers of Covid deaths.

This leaves us with Gates’ GoGiveOne initiative. This causes a conundrum. It’s the wrong solution – and a bad solution – but it’s also the only immediate option we have right now. We can choose to donate, we can choose to wait, or we can choose to do both because the former is inadequate and the latter, too remote.

So GoGiveOne.

Unless you’re an MP, health minister, or leader of a pharmaceutical company, in which case: go change the system first.


SUGGESTED CITATION  Van Ho, Tara: The World Turned Upside Down: The US, Bill Gates, and Individualizing Responsibility for the COVID Vaccine, VerfBlog, 2021/5/10, https://verfassungsblog.de/the-world-turned-upside-down/, DOI: 10.17176/20210510-181229-0.

4 Comments

  1. Marvin Bartels Mo 10 Mai 2021 at 18:17 - Reply

    A very large number of human lives depend on the correct design and application of patent law, also in the context of this and the next pandemic. This makes it all the more important to carefully analyse the facts and act accordingly.

    For the predominant opinion of patent law scholars on the patent waiver (which is not at all the opinion expressed by the author in this article) see, for example, the recent statement of the Max Planck Institute for Innovation and Competition: https://www.ip.mpg.de/fileadmin/ipmpg/content/stellungnahmen/2021_05_07_Position_statement_Covid_IP_waiver.pdf.

  2. pz Mo 10 Mai 2021 at 19:48 - Reply

    „We expect comments to be matter-of-fact, on-topic and free of sarcasm, innuendo and ad personam arguments.“

    Oh, right, that is the rule for comments. Apparently articles on this blog are held to lesser standards than reader comments.

    Rather than dropping snarky takedowns, a different author – one who is more inclined to actually engage with different positions – could have pointed out why they think a TRIPs waiver will actually expand the supply of vaccines in spite of many experts claiming that it would take years to create the necessary facilities and to acquire the necessary knowledge. They could address the argument that waivers make it less likely that patent holders with knowledge of the production process would share this knowledge with third parties. They could clarify the scope of the desired waiver, which is crucial in determining the impact it might have (or not have). A few other serious arguments against the idea are also articulated in the most recent Position Statement by the Max Planck Institute for Innovation and Competition (links not allowed in the comments).

    But, alas, we don’t find any of that here, as the author has apparently chosen to spend her time ridiculing an over-simplistic version of the opposing view instead of contributing to the debate herself. The author amasses claims about the issue without providing argumentative substance to back them up.

    Constructive debate works by engaging with opposing views, not by branding individuals opposed to the author’s world view as „TRIPS-apologists“ (what an absurd term!), unilaterally declaring that they have no evidence for any of their positions „because none exists“, and going so far as to label everyone who disagrees with her position as „disingenuous“.

  3. Paul M. Do 13 Mai 2021 at 09:38 - Reply

    One piece of evidence, which the author rather snarkily states doesn’t exist, for another position is this: as of today, many poorer countries face no patent barriers to using the mRNA technologies employed by Pfizer and Moderna. It would have been better to engage with these aspects rather than declaring her view to be a self-evident truth.

    • Paul M. Do 13 Mai 2021 at 09:40 - Reply

      That should have been „already today“, not „as of today“. Sorry.

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