Intellectual property rights and fair vaccine distribution: A new perspective on the TRIPS Agreement

Abstract

The COVID-19 pandemic has highlighted inequities concerning global vaccine distribution, as well as issues surrounding patents and intellectual property rights for these vaccines. This paper addresses the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) regarding vaccines. Adhered to by all state members of the World Trade Organization (WTO), the agreement sets minimum regulatory standards for governments on intellectual property, including vaccines. Our contribution is a new analysis of TRIPS Art. 31 Bis concerning flexibilities in its terms of use on global vaccine distribution. We consider existing solutions for fairer vaccine distribution, such as governments enforcing a compulsory vaccine licence, and governmental/individual charitable efforts. We then focus on issues with know-how distribution and access to knowledge in the TRIPS context. We conclude that the enhanced provisions of TRIPS are ill-suited to global pandemics. To ensure fairer global vaccine distribution, we argue that patent pools and further TRIPS amendments are needed to endow less and least-developed countries with the ability to implement government-use compulsory licenses and to negotiate compensation terms later under judicial review. Further, to enable countries lacking the technical manufacturing capabilities to produce vaccines under license, TRIPS needs to be amended to permit technology and know-how transfer (Holder, 2023).