Overview of Intellectual Property Rights
Intellectual property rights protect the inventions of an individual’s creativity by protecting them under the general categories of copyright law and industrial property law. Copyright law focuses on the creative work of artists and authors, while industrial property law covers technology, design, and trademarks. By protecting the rights of copyright holders and industrial property owners/creators, intellectual property law ensures that the product of human intellect is secured legally from infringement. The number of important innovations that are increasingly made in countries around the globe has made intellectual property a large portion of international trade. This importance in global trade has resulted in the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which aims to ensure the free flow of IP rights worldwide. In this article, I will be giving background information on the TRIPS agreement, talk about its importance during the generation of COVID-19 vaccines, and end with the current stance on the TRIPS agreement.
Background on the TRIPS Agreement
In 1995, TRIPS came into effect through the Agreement that created the World Trade Organization. TRIPS aims to bridge the gap between trade law and intellectual property law by having both components of the two fields. Under the auspices of TRIPS, WTO members can settle disputes that arise in the field of intellectual property and international trade laws that can occur in private transactional or public legal disputes. TRIPS focuses on how the international intellectual property law interacts with the principles of trade law, how the members should interact with the provisions based on their respective territories, dispute settlement in the field of IP law, and “special transitional agreements” that can arise under TRIPS.
TRIPS and COVID-19
Today, TRIPS is used widely in patenting pharmaceuticals. Under this agreement, any novel pharmaceutical invention, process, or product is eligible for patentability. COVID-19 put TRIPS into the spotlight because of the growing number of treatments, drugs and devices that were invented to combat the virus. During the fight against the pandemic, many countries, like South Africa and India, argued that TRIPS’ protection should be waived for COVID-19 vaccines, to promote unification between the inventions in science across countries fighting the virus. Some countries offered their inventions without asserting their IP rights, to contribute to the fight against COVID-19 as a collaborative effort, which has raised the need for a waiver of the TRIPS agreement for sharing of IP rights in this instance. As of June 16, 2022, after a decision by the WTO, the TRIPS agreement’s capacity to cover the IP rights of COVID-19 vaccines has been diminished. This decision states that in circumstances surrounding a national emergency, the TRIPS Agreement permits a developing country to bypass the compulsory patent license applications for a development in a foreign country. This allowed for an environment of cooperation and for the distribution of knowledge and research to be shared across the globe more effectively.
However, the decision came with some backlash, where the adversaries of (the decision waive the compulsory patent license for COVID-19 vaccines) claimed that shifting the scientific knowledge from developed countries to developing ones will not allow for an environment of high productivity. Further, they use the partnerships between vaccine companies and manufacturers around the world to show evidence of an already existing collaboration, which they argue makes the waiver unnecessary. Finally, in a Congressional Research Service report, worries about competitiveness in the COVID-19 vaccine industry and its potential implications between United States and China have been raised.
In conclusion, TRIPS has been used widely around the globe in international transactions of intellectual property law since its effective date of 1995. It is difficult to study the impact the TRIPS waiver had on COVID-19 vaccine production due to its limited scope (“the subject matter of a patent required for the production and supply of COVID-19 vaccines without the consent of the right holder to the extent necessary”) and short lived effect (“no later than six months from the decision date”), but there are still discussions about how to ease TRIPS provisions on “COVID-19 therapeutics and treatments,” and discussions about potentially extending the TRIPS waiver. For now, the changes in the TRIPS Agreement during the COVID-19 health crisis sets a precedent for future crises involving IP products and technology.
Author Biography: Nur Evin Mercan is a moderator of the International Law Society’s International Law and Policy Brief (ILPD) and a J.D. candidate at The George Washington University Law School. She has a Bachelor’s Degree in Psychology & Neuroscience from Syracuse University.