The Contested Space of Intellectual Property Rules in a Pandemic Agreement: Terms of Technology Transfer & the Unease with the Peace Clause [INB9]

Newsletter Edition #89 [Treaty Talks]

Hi,

Among the competing priorities dominating the attention of negotiators in Geneva working on a new Pandemic Agreement, crafting obligations on technology transfer to address Pandemic Prevention Preparedness and Response, has been one of the toughest tasks.

In this edition, we focus on the discussion around technology transfer and examine why this has been so contentious.

Countries continue to make simultaneous progress across different provisions in these negotiations. We are striving to bring you snapshots of some of these discussions as they evolve.

I was asked recently why our coverage has been focused on these negotiations and why the Pandemic Agreement is such a big deal. For one, there is fair amount of reader interest on these matters. Second, some of these unresolved issues have legacy status in global health. That countries are sinking their teeth into these intractable policy choices in the context of treaty-making makes it incredibly important. These matters go beyond the legal instrument in question, and will have an impact in other fora, and in capitals.

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Best,

Priti

Feel free to write to us: patnaik.reporting@gmail.com. Follow us on X: @filesgeneva

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Illustration Credit: Amy Clarke, Chembe Collaborative

I. ANALYSIS: PANDEMIC AGREEMENT NEGOTIATIONS

The Contested Space of Intellectual Property Rules in a Pandemic Agreement: Terms of Technology Transfer & the Unease with the Peace Clause

The governance of intellectual property in health emergencies caused much grief during the pandemic of COVID-19, when countries struggled to agree on the trade response in swiftly addressing the access to medical products. The pandemic petered out, even as countries, as members of the World Trade Organization, ultimately failed in articulating such a response. Since then, the discussion has moved to the WHO, as countries are working to put in place legal mechanisms around Pandemic Prevention Preparedness and Response.

As the UN’s only technical agency, and as the nucleus of global health policy-making, WHO has been seen as an important venue for safeguarding health from commercial interests.

IP in global health has been one of the most polarizing policy matters that has cleaved countries on this issue. In the context of current discussions, efforts are on, to not only reaffirm existing commitments to preserve policy space, but to also strengthen language. A spectrum of obligations in the Pandemic Agreement seek to protect this policy space – but we do not know yet if such efforts will ultimately feature in the final text.  

As one of the most debated provisions in a new Pandemic Agreement, the issues of production and technology transfer, have seen sustained interest, and yet consensus has so far alluded WHO member states given the implications of intellectual property in the governance of Pandemic Preparedness Prevention and Response.

The conditions for technology transfer have dominated much of the negotiations with many developed countries suggesting the use of “Voluntary and Mutually Agreed Terms”. Developing countries prefer tougher terms in the context of health emergencies. Activists caution against obligations that would make status quo worse, while the industry, and other stakeholders, prefer voluntary terms.  

The overall push is for empowering all regions and in diversifying production for better preparedness during emergencies, in trying to put in place long-term strategies to improve access, going beyond the immediate concerns on availability and affordability of medical products.

In the draft Agreement, Article 10, 11 govern production, technology transfer and related IP issues, respectively. In this story, we examine some of the key elements in these provisions and how they are being dealt with. We base this analysis on discussions on the text as on May 7^th 2024.

Image Credit: Photo by Laura Tancredi, Pexels