[Plura-list] We promised this vaccine waiver 20 years ago

Cory Doctorow doctorow at craphound.com
Tue May 25 12:53:31 EDT 2021

Today's links

* We promised this vaccine waiver 20 years ago: The WTO was always a scam.

* This day in history: 2006, 2011, 2016, 2020

* Colophon: Recent publications, upcoming/recent appearances, current
writing projects, current reading


🚇 We promised this vaccine waiver 20 years ago

The world's 125 poorest countries (2.5b people) have received zero covid
vaccine doses to date. The 85 poorest countries project vaccination in
2023/24. This is vaccine apartheid.


It's not that poor countries can't make their own vaccines. The Global
South has a *lot* of vaccine production capacity. The problem is Big
Pharma, which refuses to transfer the patents and know-how to repurpose
those facilities for mRNA production.


South Africa and India have petitioned the WTO for a vaccine waiver. We
should all want this: first, because it is monstrous to doom millions to
die in order to preserve the regulatory privileges of a handful of
hugely profitable, heavily subsidized pharma companies.

But second, even if you don't care about being monstrous, a waiver is
needed to ensure *all* our survival: the longer and wider the virus
circulates, the more mutations we'll get, with the mounting risk of a
more virulent, more lethal, more vaccine-resistant strain.

The pharma industry has an army of high-paid lobbyists (including Howard
Dean), and volunteer simps (like Bill Gates) who are pushing the story
that a waiver is unfair and counterproductive, a betrayal of the
fundamental patent bargain.


They say that the pharma companies committed their capital to vaccine
research because we, the people of the world, had promised them
exclusive rights to those discoveries (notwithstanding that we also paid
for the vast majority of that R&D).

If we alter the deal now, how can pharma trust us next time?

Of all the lies told by the pharma industry about the pandemic, this is
the most insidious. Because that's not how the global patent system
works *at all*.

Gen Xers and their elders will remember the summer of 1999 and the
Battle of Seattle, where anti-globalization activists fought for weeks
to block the signing of the WTO agreement and its chapter on IP, the
TRIPS agreement.

The WTO agreement fundamentally changed the way global patents worked.

Prior to the WTO, it was common for poor countries to completely
*ignore* the patents issued by rich countries (unless the World Bank or
a former colonial power coerced them into recognizing these claims).

That's because countries that are net importers of finished goods have
no reason to honor their suppliers' claims - doing so merely burdens
their own struggling manufacturers by forcing them to pay rent to rich

This creates drag on local development, ensuring that importer countries
stay importers, never becoming self-sufficient.

Ignoring other countries' exclusive rights regimes - copyright, patent,
trademark, etc - is a tried-and-true method to gain self-sufficiency.

That's why the Framers of the US Constitution decided that America would
ignore foreign patents and copyrights, a policy that persisted for over
a century, only ending once the US became a net *exporter* of ideas and
inventions, and thus stood to gain more than it lost.

Not just the US, of course. Many European nations spent a century or two
a-pirating while their developed their capacity. The Dutch, for example,
abolished patents during much of the 19th and 20th centuries.

It doesn't make sense for a poor country to pay a rich country for rent
on ideas. At least, it doesn't make sense from the perspective of the
poor countries.

It's easy to see what rich countries get out of the deal.

That's where the WTO (and specifically TRIPS) came in.

TRIPS proposed a bargain to poor countries: if you pay rent on rich
countries' ideas (by recognizing their patents, trademarks and
copyrights), we'll engineer the system so that you become the favored
manufacturing contractors for rich countries.

This creates jobs in the short term, and, long term, it builds capacity,
by teaching people how to build and operate complex systems.

It's a form of "technology transfer" that replaces the old adversarial
system of rent-collectors and tenant states with global cooperation.

This was a dubious proposition, but the WTO threw in a sweetener: a
provision for emergengy waivers. These meant that if there was ever a
situation where honoring foreign patents would result in domestic
mass-death,  those offshore obligations would be immediately suspended.

Think about that for a second. The pharma industry wants you to think
that a vaccine waiver reneges on the bargain the world made with it.

But that was *never* the bargain.

The bargain the Global South struck was, "We will pay rent on rich
countries' ideas. In exchange, we'll get capacity-building help. In case
of emergency, all bets are off: not only will we get access to ideas for
free, the WTO will use its might to force tech transfer."

*That's* the bargain pharma signed up for. The claim that a waiver
reneges on the deal is truly Orwellian, a heads-I-win-tails-you-lose
proposition where poor countries pay rent on ideas and get NOTHING in
return - save death and the option to pay yet more rent.

"The TRIPS Intellectual Property Waiver Proposal: Creating the Right
Incentives in Patent Law and Politics to end the COVID-19 Pandemic" is a
preprint of an LSE Legal Studies Working Paper by a group of Anglo-Irish
legal and poli sci scholars.


First published yesterday, it delves into a detailed account of this
dynamic, and opens with a devastating argument:

If the pharma companies are right and poor countries truly *don't* have
the capacity to build vaccine factories, then the WTO is a failure.

The whole point was to build capacity.

If it's not there, then all the rents the poor world paid all century
were a lethally squandered opportunity - they should have followed in
the footsteps of America and the Netherlands and ignored the rent
demanded by wealthy lands.

The authors describe how pharma gamed the system in the WTO decades. For
example, companies devote enormous energy to patenting small variations
on their processes and products, allowing them to extend the life of
their patents long beyond the 20 years they're promised.

This produces some genuinely hideous outcomes. In Patrick Radden Keefe's
EMPIRE OF PAIN, the author documents how the Sackler family contemplated
seeking regulatory approval to prescribe Oxycontin to children in order
to extend the life of their patents.


It's hard to imagine how we'll survive the pandemic crisis without a
waiver. COVAX, the "voluntary" system that lets billionaires,
corporations and rich countries offer vaccine doses to poor countries as
charity, is a total disaster.

COVAX has only raised pledges of 20% of the needed doses - and it isn't
delivering on those pledges.

The system isn't just failing by accident - the pharma companies are
actively sabotaging it.

C-TAP, the WTO's own scheme for pooling vaccine production know-how, has
failed, largely because companies like Pfizer and Biontech have forced
NDAs on their contractors that prevent them from participating in the


The pharma companies have refused to license for mRNA vaccines for
production in both in the rich world (Canada, Israel and Denmark) and
the poor world (Bangladesh).

The deals pharma struck with the global south don't just bump the
world's poorest to the back of the line - they also charge the poorest
people the highest prices for vaccines. Astrazeneca is charging South
Africa twice the going rate in the EU.


This price-gouging is papered over with misleading claims of charity -
for example, Moderna says it won't extract profit from Brazilians
Fiocruz until the pandemic ends - but the agreement allows Moderna to
declare the pandemic over in July.


Pharma's claims of acting in the public interest are pure fantasy.

Pfizer says it makes a 20% profit by selling vaccines it makes for
$3/dose at $19.50/dose ("the pandemic price") - and promises that this
price will go up to $175/dose for boosters.


The very idea of pharma patents is surprisingly new. France instituted
pharma patents in 1960; Ireland, 1964; Germany, 1968; Japan, 1976.
Pharma demanded these patents to produce the "incentive" to invest, but
the bulk of basic pharma R&D is still publicly funded.

Take the Astrazeneca vaccine, developed at Oxford. Between 97.1 and 99%
of the funding for that research came from public sources, not
Astrazeneca's profits.


The WTO agreement promised the Global South that in a global pandemic,
the same might that was used to coerce them into passing laws enforcing
rich countries' patents would be brought to bear on rich countries to
force them to help make medicine where it's needed.

The pharma shills who claim that waiving the patents on mRNA vaccines
actually have a point: pharma companies have gamed the patent system so
that much of the know-how is never disclosed in patent filings, and the
filings themselves are sealed for 18 months.

In the face of this sabotage, the WTO could order rich member states to
uphold their obligations by forcing their companies to transfer patents
AND trade secrets to poor countries - just as the US forced pharma
companies to pool their research on penicillin during WWII.

That would be the fair thing to do. The right thing to do. The rational
thing to do - if we want to ensure the continuation of our civilization
and even our species in the face of new mutant strains.

The WTO claimed that poor countries that honored the TRIPS would become
tech exporters, building their own domestic capacity. Twenty years
later, they're still importers - and on track to stay that way forever
(or until we're all killed by covid).

The US has no standing to complain about a TRIPS waver. A country that
built its fortune and capacity by refusing to pay rent to rich nations
for their ideas deserves the same treatment once it becomes rich itself.


🚇 This day in history

#15yrsago Can. Heritage ministry suppressed report damning DMCA

#10yrsago What Will Come After: the sweet melancholy of the zombie

#5yrsago Why medieval monks filled manuscript margins with murderous

#5yrsago More single adults living with parents than on their own for
first time since 1880s

#1yrago A jailbreak for every version of Ios

#1yrago Mafia logic and conservative ideology

#1yrago Bahamas Company Registry leaked

Colophon (permalink)

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