By Brook K. Baker
It was apparent from the outset of the COVID-19 pandemic that a business-as-usual approach — perpetuating the biopharmaceutical industry’s intellectual property-based monopolies and allowing artificial supply scarcity and nationalistic hoarding by rich countries — would result in systemic failure and gross inequity.
The world had seen it all before, from the Big Pharma blockade of affordable antiretrovirals to treat HIV/AIDS, to the hoarding of vaccines by the global north during the H1N1 bird flu outbreak in 2009 and its stockpiling of Tamiflu.
Activists in the access-to-medicines movement quickly mobilized to combat the threat of vaccine/therapeutic apartheid.
These activists, most of them veterans of the AIDS treatment access movement, forecast the dangers of preserving monopoly control in response to a global pandemic, and initiated a series of campaigns to address these dangers.
Activists anticipated the rise of vaccine, therapeutic, and testing nationalism — with rich countries securing preferential access to COVID-19 medical technologies and preventing export to other countries even before they had been approved — and the press soon followed. The U.S. and U.K. were quickest off the mark in May 2020, securing advance purchase agreements with vaccine makers, followed shortly thereafter by the EU, Canada, and a handful of other rich countries.
In response, the People’s Vaccine Alliance, mobilized by UNAIDS and Oxfam, kicked off. More than 140 public figures, including 50 former world leaders and three African leaders, wrote an open letter arguing that any vaccine against COVID-19 should be patent-free, produced at scale and made available at no cost to people everywhere: “We cannot afford for monopolies, crude competition and nearsighted nationalism to stand in the way.”
Activists also criticized hoarding of medicines as the U.S. locked up initial supplies of remdesivir and entered into early, disproportionate advance purchase agreements on promising monoclonal antibodies produced by Regeneron, Eli Lilly, and AstraZeneca.
But the start of access-to-medicine organizing during the COVID-19 pandemic began well before these prominent campaigns. Faced with emerging access crisis, already presaged by shortages of personal protective equipment and associated hoarding and export restrictions, the access-to-medicines movement began mobilizing almost immediately.
In mid-February 2020, Public Citizen, a non-profit consumer rights activist group, published a report, “Blind Spot,” which explored the role of the U.S. government in coronavirus R&D. Since the 2002 SARS outbreak, the U.S. National Institutes of Health alone spent nearly $700 million on coronavirus research. The report called for a greater public role in infectious disease research and for nonexclusive licensing, reasonable pricing, and access requirements in all government grants, contracts, and licensing arrangements.
And, though the circumstances of the pandemic have curtailed opportunities for mass mobilization, public demonstrations, and civil disobedience, a regrouping of global and local access-to-medicines activists nonetheless has succeeded in highlighting the pernicious consequences of IP monopolies on the COVID-19 response.
On March 5, 2020, over 70 civil society organizations in the U.S. wrote a letter to President Trump demanding steps “to ensure that vaccines or treatments for coronavirus disease 2019 (COVID-19) developed with U.S. taxpayer dollars are reasonably priced and available to everyone.” They urged open, non-exclusive licenses for COVID-19 vaccines and treatments. Shortly thereafter, organizations in Europe wrote a similar letter to the European Commission.
International organizing followed shortly thereafter. One of the first international calls was organized by the Médecins Sans Frontières Access Campaign on March 17, 2020, with 85 participants from 35 organizations. That first meeting set up seven working groups, with focuses including IP flexibilities around patents and data exclusivity and a World Health Organization (WHO)/United Nations (UN) mechanism for ensuring access to therapeutics, testing and diagnostics and vaccines.
Public Citizen established a listserve for communications and a regular activist Zoom meeting. One of the first outputs of this informal collective, led by Knowledge Ecology International, was to instigate and support an initiative by Costa Rica to establish and IP licensing pool at the WHO for COVID-19 health technologies. The initiative led to a Solidarity Call to Action on May 29, 2020, and the establishment of WHO COVID-19 Technology Access Pool (C-TAP) shortly thereafter. Unfortunately, pharma companies signaled their antipathy to the Pool from the very beginning, calling it “nonsense,” and not a single biopharmaceutical company has joined C-TAP to date.
Around the same time that C-TAP was being organized, the Access to COVID-19 Tools Accelerator (ACT-A) was launched by the Bill & Melinda Gates Foundation, the Coalition for Epidemic Preparedness Innovations , the Foundation For Innovative New Diagnostics, Gavi, The Global Fund, Unitaid, Wellcome, the WHO, the World Bank and, shortly thereafter, UNICEF and the Pan American Health Organization. Although access-to-medicines activists were skeptical of ACT-A’s short time-horizon, limited ambition, and excessive reliance on unregulated private sector participation, they joined the initiative to try to accelerate equitable access to COVID-19 vaccinations, medicines, diagnostic tests, and other medical technologies in low- and middle-income countries. Nonetheless, there were trenchant critiques of ACT-A and its architecture from the very beginning, despite the fact that dozens of civil society and community representatives volunteered to work within ACT-A workstreams.
In response to industry’s rejection of voluntary IP pooling and technology transfer, and to growing evidence of vaccine and therapeutic nationalism, on October 2, 2020, South Africa and India initiated a proposal to the World Trade Organization (WTO) that certain intellectual property protections on health technologies relating to the prevention, containment, and treatment of COVID-19 be temporarily waived.
Less than two weeks after the filing of the India/South Africa proposal, 380 civil society organizations issued an open letter to WTO Members urging them to support the waiver proposal. This initial effort was followed by a flurry of additional letters, statements, op-eds, webinars, and other advocacy events in support of the waiver proposal. Contact with the Biden Administration started even before his inauguration, and on February 26, 2021, 400 U.S. organizations wrote the President demanding U.S. support for the waiver. By April 2021, activists had organized a series of demonstrations at the WTO and in the U.S., U.K., Europe, South Africa, and elsewhere.
Organizing and continued protests in the U.S. finally paid off on May 5, 2021, when United States Trade Representative Katherine Tai announced that the U.S. would support an intellectual property waiver on COVID-19 vaccines. This followed six months of procrastination and distraction at the WTO where proponents were asked over and over again to explain how IP was a barrier to companies producing copycat products and how the waiver could be implemented to immediately increase supply. Germany was particularly trenchant and duplicitous in opposing the waiver. With the U.K., EU, Switzerland, and a handful of other countries still opposing the waiver, activists organized protests at the G-7, followed by a mass week of action during Vice Chancellor Merkel’s visit to the U.S., including demonstrations in D.C., New York City, and at multiple consulates.
Activists not only condemned Germany’s blocking tactics at the WTO, but called out President Biden for sitting on the fence and refusing to proactively push for adoption of a waiver. Protesters have also demonstrated repeatedly against vaccine manufacturers, including Moderna, AstraZeneca, and Pfizer, for refusing to transfer vaccine technology and to allow expanded production by qualified producers.
Throughout the COVID-19 pandemic, activists have initiated and supported most of the policy initiatives designed to overcome inadequate supply, profiteering prices, and grossly inequitable distribution. Regrettably, global policy makers have largely defended the status quo and responded with symbolic gestures thus far.
Despite this intransigence, activists will continue to advocate for COVID health justice.
Brook K. Baker is a professor of law at Northeastern University School of Law and a Senior Policy Analyst for Health GAP.
