[Book Review] Intellectual Property, COVID-19 and the Next Pandemic: Diagnosing Problems, Developing Cures
Söğüt Atilla
[Book Review] Intellectual Property, COVID-19 and the Next Pandemic: Diagnosing Problems, Developing Cures
The IPKat has received and is pleased to host the review of “Intellectual Property, COVID-19 and the Next Pandemic: Diagnosing Problems, Developing Cures” (eds. Haochen Sun and Madhavi Sunder, 2024, CUP). This book review has been prepared by Katfriend Zoya Yasmine, DPhil in Law candidate at the University of Oxford. Here is what Zoya writes:
The COVID-19 pandemic exposed the deficiencies of an intellectual property system premised on monopolisation and exclusivity. Intellectual property rights over vaccines allowed wealthier nations to secure privileged access to medicines at the expense of others, contributing to preventable illnesses and deaths globally. At the same time, the pandemic created space for alternative approaches which, although imperfectly implemented or sidelined, now warrant renewed attention as we manage future global health crises.
This comprehensive book examines the causes of the inequitable distribution and supply of vaccines during the COVID-19 pandemic, with a focus on the role of patents, “know-how”, trade secrets, and international legal agreements, such as TRIPS. Building on this analysis, the authors point towards practical, policy-oriented reforms aimed at ensuring equitable access to medicines for all. These include, among others, a Patent Philanthropy Initiative, mandatory trade secret disclosures, the introduction of dormant licences, and greater investment into technology transfer hubs.
The book opens with an introduction by its editors, Madhavi Sunder and Haochen Sun, who frame the role of IP in our international response to COVID-19. Moving beyond the familiar narrative of IP as a driver of innovation, they immediately question this and highlight its profound distributional impact on vaccine development and access, especially in the Majority World. The editors also signal their intention for the book to influence present-day decision-making, urging readers to seriously engage with the contributors’ proposed reforms to change the way we respond to pandemics.
Authored by an international team of academics, the rest of the book goes beyond just IP, by situating these laws within their real-world complex intersections with global health, politics, international relations, finance, and innovation theory. It reveals how these overlapping forces together can hinder the urgent delivery of life-saving medicines in the face of global health crises.
A closer look at some of the chapters
The book is split into 15 chapters, organised across 4 parts. Rather than summarising each chapter in detail, I outline the central themes of each part and highlight particular chapters that are especially illustrative of the book’s broader contributions and proposed reforms.
Part I focuses on key theoretical and policy issues surrounding the production and access of vaccines. In Chapter 1, Peter Lee examines how the patent bargain has been undermined by trade secrets and tactic knowledge, which prevent the effective manufacturing of patented vaccinations. Additionally, in Chapter 4, Matthew M. Kavanagh and Renu Sigh highlight how IP’s ability to address vaccine equity is deeply intertwined with and dependent upon, political factors.
Part II explores how low-income countries can strengthen their capacity to protect public health. In Chapter 6, Haochen Sun advocates for a Patent Philanthropy Initiative as a mechanism to channel profits from patented medical products into funding for public health initiatives, as well as other good faith obligations to transfer technology to developing countries. Furthermore, in Chapter 7, Cynthia M. Ho makes a distinctive contribution by examining the IP barriers embedded within regulatory frameworks that pose barriers to access to life-saving medicines, like data exclusivity.
Part III turns to alternative approaches to combating pandemics. In Chapter 9, Sapna Kumar and Ana Santos Rutschman propose a “dormant license” which would require IP right holders to commit to producing medicines during public health emergencies in advance. In Chapter 11, David S. Levine and Joshua D. Sarnoff explore the challenges of trade secrets in the context of a pandemic, arguing that greater disclosure of such information would be both legally possible and not especially unconventional.
Part IV examines the relationship between IP and public health in China, Africa, and Latin America. In Chapter 14, Olufunmilayo B. Arewa offers a necessary postcolonial perspective on the COVID-19 response, advocating for a move away from the colonial hangovers that remain in IP law and continue to disadvantage African patients. The final chapter, by Kenneth C. Shadlen, considers how IP laws can be restricted to facilitate technology transfer for local production.
Final thoughts
Taken together, the chapters present a rich diversity of perspectives on the causes of vaccine nationalism and the inadequate supply of COVID-19 medicines. Yet, certain themes emerge consistently throughout the volume: the shortcomings of the COVID-19 Vaccines Global Access (COVAX) and COVID-19 Technology Access Pool (CTAP), the urgent need for technology transfer hubs, and the impact of TRIPs and its proposed waiver. One of the book’s strengths is how these themes are revisited, both explicitly and implicitly, in each chapter through varied disciplines and contextual perspectives. In doing so, the authors provide readers with a multifaceted understanding of the challenges at stake.
In addition, while the introduction of the book focuses on the role of IP and the inequitable impacts of the COVID-19 response, the chapters that follow go into further depth to explore the complex realities and (dis)connections between IP and pandemic governance. One of my strongest takeaways from the book is that, although IP undoubtedly plays a role in pandemic responses, its impact may not be as great as often assumed. Instead, IP can sometimes be a convenient mask for deeper, more entrenched political and commercial choices that shape global health outcomes.
Although the book features contributions from authors across the world and from different disciplines, the book could have benefited from a chapter with contributions from policymakers or health professionals in the Majority World. Such perspectives could have provided first-hand insights into the challenges faced during the pandemic and helped to more directly connect the legal and policy arguments to their real-world consequences.
Intellectual Property, COVID-19, and The Next Pandemic “looks forward by looking back” (Shadlen, p.384) by thoroughly examining the drivers behind the inequitable distribution and development of COVID-19 vaccines and offering concrete reform proposals grounded in these insights. This book is an invaluable resource not only for scholars of intellectual property and global health but also for policymakers and practitioners seeking practical steps forward to prepare for future pandemics.
Details
Publisher: Cambridge University Press, December 2024
Extent: 412 pages
Format: available as an open access e-book
ISBN: 9781009282406