A COVID-19 TRIPS Waiver Makes No More Sense for Copyrights Than It Does for Patents

Jaci McDole Nigel Cory April 2, 2021
April 2, 2021

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Despite assertions from various quarters that intellectual property (IP) rights present a barrier in marshaling an effective global response to the COVID-19 pandemic, there is simply no evidence it is true. In fact, IP has proved to be indispensable in developing needed and effective vaccines and therapeutics. Nevertheless, advocates have seized the moment to mount an assault not just on patents, but also on copyrights. They are expanding the scope of a petition to waive COVID-19 IP rights that is before the World Trade Organization’s (WTO’s) TRIPS Council, in a misguided attempt to reform certain national copyright laws governing digital access to knowledge, and data and text mining. This is neither the time nor the forum for such ill-conceived requests.

Throughout the pandemic, innovation has proved to be critical. The proverb that “necessity is the mother of invention” has never been so true, with the world facing its first pandemic in a century. Individuals, enterprises, and countries have scrambled to collaborate in developing new vaccines, personal protective equipment, diagnostic tests, healthcare robots, inflatable intensive care units, and any number of new goods and services, all in the collective effort to combat this common foe. Yet some are undermining these innovative efforts by baselessly attacking intellectual property, claiming it represents a barrier to the prevention and containment of COVID-19. In doing so, they are attacking a central part of the system actively supporting such innovations.

Most notably, on October 2, 2020, India and South Africa petitioned the WTO TRIPS Council to grant a broad waiver “to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19.”

Since joined by more than 50 other nations, India and South Africa intended to use COVID-19 to advance their long-running agenda of attacking IP rights. Their proximate (misguided) focus has been on vaccine patents, but they are also using the pandemic as an opportunity to assail copyrights, arguing certain copyrights have the potential to create barriers in the fight against COVID-19. Yet the only proof they have offered to support their claim has been a request by the governor of Kentucky and the possibility that copyright-protected computer-aided design (CAD) files could prevent a hospital from using a 3D printer in emergency situations, despite the fact that both examples ultimately pertain to patents rather than copyrights.

A group of nonprofit and civil society organizations issued a statement on March 22 in support of this broader attack on copyright, seeking to use the petition as a sweeping gambit toward global copyright reform. The statement’s authors claim differences in copyright laws across countries and regions are barriers to accessing information they need to prevent, contain, and treat the disease. As proof, they cite a so-called “limited” interpretation of what constitutes educational use of digitally accessed copyrighted works, which they claim is a barrier to making use of knowledge that is necessary in the fight against COVID-19. They also cite the example of Canadian artificial intelligence platform BlueDot, which used text and data mining to track and model the spread of COVID-19 before almost anyone else was even aware there was a pandemic—something advocates say isn’t possible in most countries due to strict interpretations of copyright laws. But the truth is neither of those cases directly addresses the purpose set forth in the original petition: “the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19.” [Emphasis added.]

The statement references educational activities being limited “‘within’ educational institutions or in ‘face to face’ teaching.” Although education is essential for the continued growth and innovation of society as a whole, broadening the waiver to include untethered access to copyrighted information for any and all educational purposes is far outside the scope of the original petition. It appears this call for access to knowledge is a thinly veiled attempt in leveraging a global pandemic to gain royalty-free access to entire works under the guise of education—an appalling attempt at a land grab.

The fact that more people are accessing digital information remotely does not constitute a reason to blatantly undermine copyrights, which have become even more important as the pandemic has led to the cancellation of most performances, public gatherings, lectures, and exhibitions. The pandemic also has shifted many activities online and has made more creators reliant on income from digital works. A general petition for access to specific information related to medical products in a time of global pandemic is hardly the appropriate vehicle to challenge laws and interpretations of certain sovereign countries. Meanwhile, some of the countries referenced in the statement’s citations, like Singapore, began taking steps prior to the misplaced mudslinging to amend their laws concerning both digital access to information for educational use and text and data mining.

As for the BlueDot example, several countries, including Ecuador, Uruguay, South Africa, and Singapore, deployed contact and data tracing solutions in 2020 to fight COVID-19—with most countries deploying more than one. Copyright laws concerning text and data mining are not nearly as much of barrier to the pandemic fight as the authors of the statement would like the TRIPS Council to believe.

Responding to questions concerning the waiver, the proponents state the scope is “very specific to COVID-19, its prevention, containment and treatment.” They further declare, “the copyright being waived under the proposal is only in the context of rights hindering the response to COVID-19.” Therefore, the proposed waiver does not—and should not be interpreted to—include broad provisions for digital access to information for educational use or for data and text mining. In determining whether this waiver is necessary at all, the TRIPS Council also must consider the fact that certain questions were left unanswered by the proponents, including three key questions: 1) “how the waiver would directly resolve issues related to COVID-19 prevention, containment, or treatment”; 2) a request for data supporting the contention that “a waiver would demonstrable [sic] reduce COVID-19 prevalence or impact during the acute phase of the pandemic”; and 3) a request for data supporting the claim that IP has “systematically hindered or blocked the prevention, containment or treatment of COVID-19.” The answer in all cases is no.

This latest affront to IP rights is, to say the least, ill-placed, if not misinformed. There is simply no compelling reason to focus on the suspension of copyright in this case.