Global pandemics and the waiver of intellectual property rights: possibilities and challenges

Abstract

The coronavirus (COVID-19) pandemic has highlighted the conflict between intellectual property rights (IPRs) and public health. During a global pandemic, IPRs can act as an impediment to equitable access to essential pharmaceutical products, such as vaccines. This is because IPRs create monopolistic privileges. In turn, the monopoly on essential pharmaceutical products counteracts public health objectives. This dissertation investigates whether intellectual property (IP) waivers are a definitive solution to the systemic crises that is access to essential pharmaceutical products during a global pandemic. This is done by scrutinising theWorld Trade Organisation (WTO) legal instruments, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the 2025 World Health Organisation (WHO) Pandemic Agreement. The WTO Agreement on TRIPS provides flexibilities such as compulsory licensing, parallel importation and regulatory review exception to balance IPRs against the interests of the public, with specific attention to public health. The study evaluates these mechanisms available to state parties during international health emergencies. The findings suggest that the compulsory licensing flexibility as contained in Articles 31 and 31bis of the TRIPS Agreement, and the 2005 Protocol Amending the TRIPS Agreement, is cumbersome and largely ineffective during situations of emergency, such as a global pandemic. The research indicates that IP waivers are the most effective solution to the issue of inequitable access to medicine during a global pandemic. With restructuring of the WTO IP waiver decision-making process, it offers a quick and expeditious solution to the issue of access to medicine during situations of urgency, such as global pandemics.