In mid-October, urgent global health issues were discussed at the World Health Summit (WHS) in Berlin. Simultaneously, the eagerly awaited new “negotiating text” of the pandemic accord was published. The aim is for the accord to be drafted and presented for decision by the 77th World Health Assembly in May 2024. The proposal will be voted on by 194 member states of the World Health Organization (WHO). Initial reactions to the new negotiating text focussed on what was probably the most controversial topic, but one that was not discussed much at the WHS: equitable access to medical supplies through the pandemic accord. However, the WHS would have offered politicians, researchers and civil society a rare opportunity to discuss the lessons to be learnt from the Covid-19 pandemic and what is really needed to ensure access.
Although the participating guests at the WHS emphasised the need to learn from the Covid-19 pandemic, they shied away from addressing pressing questions about intellectual property (IP) rights as well as pathogen access and benefit-sharing (PABS). The discussion about IP rights is about whether, in the event of a pandemic, there should be compulsory licences for a limited period of time, as well as a mandatory transfer of technologies and knowledge by pharmaceutical companies. The PABS discussion revolves around the question of whether signatory countries and WHO should receive some kind of compensation if pharmaceutical companies can access pathogens and sequencing data via a central database in order to develop commercial medical countermeasures.
In order to answer whether the temporary waiver of IP rights and PABS could really contribute to the faster development and distribution of medical countermeasures, it is necessary to take an honest look at what worked well during the pandemic and what did not. One clear positive aspect was the rapid development of new medical countermeasures. The exchange of pathogens and sequencing data via open platforms gave researchers and pharmaceutical companies rapid access to emerging virus variants. What did not work, however, was the fair distribution of newly developed countermeasures. This was because the products were either not sold to countries in the Global South or only on very unfavourable terms, which was also due to non-transparent contracts being forced upon them by pharmaceutical companies. At the same time, the financial advantages resulting from the sharing of pathogens and sequencing data generally only benefited industrialised countries and pharmaceutical companies. This is despite the fact that the development of countermeasures is also based on collaboration with researchers from the Global South.
The pandemic accord is intended to ensure that the global community is better prepared for pandemics in the future. However, the new negotiating text does not contain any solid binding provisions. Instead, it attempts to regulate the distribution of medical goods via IP rights and PABS mechanisms. Although the current draft includes the voluntary transfer of knowledge and technologies and the temporary waiver of IP rights, it is unclear how well these voluntary regulations will work in practice. In addition, the initially unsuccessful attempt to produce a Covid-19 vaccine by WHO’s mRNA production centre in South Africa has shown that waiving patents is not enough. Although Moderna’s “recipe” was available in South Africa, there was a lack of knowledge and training of local staff by the pharmaceutical company. Vaccine production was therefore drastically delayed.
The proposal presented for a PABS mechanism also raises doubts. The negotiating text envisages a system in which countries share pathogens and data showing pandemic potential with a central WHO laboratory network. A pharmaceutical company that accesses material via the network would have to give up a percentage of the products developed from it in return. Although this process of centralisation sounds plausible at first, there are considerable concerns about its functionality. While the procedures for exchange and collaboration via existing open platforms already work very well worldwide, similar centralised systems have shown considerable weaknesses. This is because they necessarily have to link access and benefit-sharing to a complex legal framework that includes multiple private contracts, in turn making the rapid transfer of data more difficult and the sharing of medical countermeasures non-transparent.
Currently, it remains unclear whether the approaches to IP rights and PABS outlined in the negotiating text are sufficient to achieve the goals that have been set. For the most controversial issue, however, a simpler solution is conceivable: Equitable access to medical countermeasures could be ensured by creating an unconditional obligation to share. Specifically, it would be possible for states to commit in the accord to surrender a certain percentage of the medical countermeasures they have acquired themselves. These contributions could then be distributed fairly among the signatories of the pandemic accord by WHO or a newly created institution.
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