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Who Owns Vaccines?

How nationalist IP-hoarding will prolong the pandemic

In an opinion piece early last month, the Washington Post’s free-market shill Marc A. Thiessen bubbled with praise for the pharmaceutical industry, which, he wrote, “mobilized to rescue humanity” during the pandemic. The headline: “Democrats demonized Big Pharma. Now it’s saving us from covid-19.”

Such a simplistic morality tale is absurd on its face: much of the suspicion of Big Pharma’s vaccines is coming from the right—or from the politically amorphous “anti-vax” movement. And even as regulatory caution and press scrutiny raise fears of side effects from the Johnson & Johnson and AstraZeneca vaccines, about 66 million Americans were fully vaccinated as of last week. It’s been mostly good press for the big drug companies since Pfizer announced in November that its first-to-market vaccine was more than 90 percent effective, with the companies enjoying not just a windfall in new revenue, but a boost in brand awareness and public image.

The industry has not been modest in this moment. “I believe this is likely the most significant medical advance in the last 100 years, if you count the impact this will have in public health [and the] global economy,” Pfizer’s CEO Albert Bourla proclaimed when its trial results were announced. On that same day, Bourla happened to cash in $5.6 million of Pfizer stocks. “I feel like I should just send Albert some money myself to be like ‘Thank You,’” one biotech analyst told CNBC. (The CEO was awarded more than $21 million in total pay for 2020.) In our springtime euphoria over widespread distribution of vaccines in the United States, not many Americans are “demonizing” the drug companies. Some may credit Big Pharma with saving us not just from a disease but from economic collapse.

Yet one only needs to step back a few paces to recognize the strangeness of this phase in the nation’s economic life. We’ve witnessed a national rescue effort that has almost nothing to do with corporate leadership or free-market principles. Under a Republican administration, the federal government invested heavily in vaccine research and development. Although federal financing of drug development has always subsidized Big Pharma’s profits, the pandemic pumped public dollars into the industry in an unprecedented way. And then the U.S. government became the sole purchaser of the drug-company-branded vaccines—buying back its own subsidized vaccines.

The Trump administration funneled $10 billion into the Operation Warp Speed program, including $1.95 billion to Pfizer for 100 million vaccine doses. The payout was guaranteed, even if the vaccine failed to receive emergency authorization. Similar purchasing arrangements were made with Moderna, which also received $1.5 billion for research. Four other pharmaceutical companies joined Operation Warp Speed and scooped up heaps of taxpayer dollars.

“Socialism led to rapid vaccine development,” Arthur Caplan, the founding head of the Division of Medical Ethics at NYU School of Medicine, told me last week: “Government-sponsored contracts, government-sponsored research, not the free market. The free market never would have done it.”

The policies of the Trump administration have been avidly advanced by the new Democratic administration. And even as state and local governments coordinated the distribution of the products, ordinary citizens got a glimpse of what “socialized medicine” would be like: you walk in, get a treatment, and walk out with no discussion of the cost and no bill arriving later in the mail.

It’s a distinctly American variant of “socialism,” in which the risks and costs are socialized, while plenty of profit flows to big corporations.

At the same time, it’s a distinctly American variant of “socialism,” in which inequities in health care meant limited access for those in less affluent zip codes, especially Black Americans, and in which the risks and costs are socialized, while plenty of profit flows to big corporations. And it’s also distinctly American in that the government effort to align corporate policies with public health pretty much stops at the United States’ borders. 

Now another crisis looms, one obscured by all the good will Big Pharma has garnered over the past six months: cases of Covid anywhere in the world endanger the health of those everywhere—and beyond the United States and Europe, many countries are struggling to obtain any doses of Covid-19 vaccines at all. In the current highest bidder system, it could be years before those in low-income countries receive doses, because wealthy countries have monopolized the available supply.

The obvious question that arises in a global public health crisis is: Why should life-saving vaccines be controlled by a few big companies with an interest in selling them to the wealthiest nations? The answer, of course, is that vaccines are proprietary—the “recipe” is the intellectual property of the companies that sell them. Now, after nearly a year of pressure from international organizations and more than two months into Biden’s term, the White House is considering temporarily suspending the intellectual property laws that protect Big Pharma’s profitable Covid-19 formulas and manufacturing techniques, according to a recent CNBC report.

Removing IP protections for Covid vaccines would allow the manufacture and distribution of vaccines in low- and middle-income countries, making distribution more equitable. “It should have been done a year ago,” Caplan told me of dropping IP laws, because “it put people at risk of death and in harm’s way for no reason.”

There was a brief moment when it looked like vaccine manufacture and distribution could be relatively affordable around the globe. Last year, when Oxford University suggested that it would donate its vaccine recipe to the world, watchers hoped that egalitarianism might lead to open sourcing of vaccine formulas, circumventing intellectual property laws. But the hope was short-lived.

Bill Gates, under the auspices of his foundation, which has made global health one of its missions, convinced Oxford to instead partner with the pharmaceutical company AstraZeneca. The deal reflected the multi-billionaire’s passion for patents, the source of his wealth.

When asked about this intervention, Gates said that the challenge of manufacturing quality drugs was far too great for just any old company to pick up. Oxford needed to place their formula in the hands of a corporation with expertise, he said, meaning a company invested in the high-stakes game of profiting off of the world’s plague.

Gates’s aw-shucks meddling ensured that Big Pharma would not lose out on the unprecedented profits the Covid pandemic would undoubtedly bring.

For decades Big Pharma has blamed their sky-high, inaccessible prices on research and development costs. Like hostage takers, the industry has said, essentially, regulate our pricing and we’ll stop working on important new drugs. Despite the fact that most new drug innovation is done by the National Institutes of Health or smaller development companies that are often bought out by Big Pharma, the line that price controls will stifle innovation is practically canon.

But with the very public federal effort to fund research for the Covid-19 vaccine, “complex manufacturing” began to do the rhetorical work of “stifling innovation,” keeping the vaccine’s profits high and in the hands of a select few corporations. Some pharmaceutical companies do manufacture their products in-house, Caplan told me, but many others, like Johnson & Johnson, already farm out manufacturing.

Gates’s aw-shucks meddling ensured that Big Pharma would not lose out on the unprecedented profits (derived from NIH subsidized development, the largess of Operation Warp Speed, and direct contracts with foreign governments) the Covid pandemic would undoubtedly bring. And it ensured that he and his foundation would once again get applause for its neoliberal altruism, the world’s current sad solution for global health disparity.

With Gates’s intervention, the precedent was set; those in need of vaccines were going to have to compete on “the free market.” As Jay Hancock wrote at Kaiser Health News last August, “Other companies working on coronavirus vaccines have followed the same line [as Oxford], collecting billions in government grants, hoarding patents, revealing as little as possible about their deals—and planning to charge up to $37 a dose for potentially hundreds of millions of shots.”

Early this year the Ukrainian government was forced to choose between honoring its own laws or vaccinating its people. One of the poorest countries in Europe, Ukraine experienced a revolution seven years ago that highlighted the former prime minister’s use of public funds for personal decadence. The new administration promptly ushered in a raft of anti-corruption laws that require full disclosure of nearly all government contracts.

But when Covid-19 infected 1.3 million of Ukraine’s 41 million residents and killed more than 30,000, the country found that their best chance at purchasing a mass amount of vaccine doses would mean doing business with American and European pharmaceutical companies that require strict nondisclosure agreements for all vaccine purchases.

In the past many of the same companies now contracted for Covid-19 vaccines shied away from entering the vaccination market because the drugs are often single-dose (unlike drugs for chronic diseases), which means a lack of repeat customers. Operation Warp Speed altered the vaccine business though, with its rich government pay-outs for research and development, a vast potential customer base, and government management of distribution.

But this new arrangement means that a country like Ukraine, hoping to secure vaccines for its people, is forced to negotiate directly with pharmaceutical companies that in turn demand confidentiality regarding contract details. Little specific or reliable information is available about what some countries are paying, forcing others to negotiate in the dark. You could more accurately call it extortion. For countries historically and repeatedly fucked over by Western empire, colonial hegemony, internal corruption, and corporate resource extraction, coughing up $37 per dose is impossible.

“We should be pooling everything, both the research and the expertise associated with manufacturing,” Dean Baker, an expert on intellectual property and co-founder of the Center for Economic and Policy Research, told me in late March. If the vaccine formulas—and the manufacturing techniques—had been openly shared back in March of 2020, other companies could theoretically have been ready to begin manufacturing by November or December. International collaboration could have reduced manufacturing and distribution time and saved countless lives.

“There’s just an incredible confusion about the whole meaning of intellectual property,” Baker said. In an article for The Nation in February, Baker chronicles the pro-business evolution of intellectual property laws since the 1970s and estimates that today it annually transfers roughly $1 trillion dollars from the vast majority of us to an elite few. He argues that national and global inequality could be greatly reduced by changing these biased laws. But corporations benefit from public misunderstandings about how intellectual property laws work and who they benefit.

Even now, during a pandemic that has taken millions of lives and still jeopardizes millions more, the veil of “intellectual property” has tainted our moral arguments and perverted the value we place on human life. Baker emphasizes the differences between ideas and property, a distinction that has been erased by decades of extending the duration of copyright and patent protections. “Without Microsoft’s government-granted patent and copyright monopolies,” Baker wrote, “Bill Gates would probably still be working for a living. Many other billionaires and millionaires would be far less wealthy if we had different rules for intellectual property.”

For countries historically and repeatedly fucked over by Western empire, colonial hegemony, internal corruption, and corporate resource extraction, coughing up $37 per dose is impossible.

As Daniel Takash and Brink Lindsey wrote in a paper on intellectual property, excerpted at the Niskanen Center in 2019, “Property in physical objects allocates naturally occurring scarcity, whereas extending property rights to ideas creates artificial scarcity.” The authors compare the theft of a neighbor’s apple and the singing of a song written by the neighbor. Once you’ve eaten the apple, it’s gone (naturally occurring scarcity), but singing the neighbor’s song doesn’t eliminate it. Your neighbor can only forcibly or legally prevent you from singing the song (artificial scarcity).

Imposing property rights on the commons, as our ancestors did, prevented overhunting and the starvation of all—in the face of scarcity, when the “threshold of carrying capacity” of the commons is reached. (This is not a defense of personal property. Nor is it meant to overlook the myriad horrors its imposition caused those already living in the commons.) Communal and state property rights are alternatives to private property, but clearly today not the norm.

Yet by singing your neighbor’s song, you deplete nothing; your neighbor is still free to sing the song; it is still theirs. “Despite the asserted ‘natural right’ to intellectual property,” note Takash and Lindsey, “it is noteworthy that property in ideal objects [ideas, developments] can never arise naturally—that is, without the intervention of a central authority.” Your neighbor, the author of the song, who sang it within “earshot of others . . . can’t monitor their listeners all the time for the rest of their lives to make sure nobody sings it again to others, and they can’t monitor those others because they don’t know who they are.”

If the dominant pharmaceutical companies were really being mobilized to “rescue humanity,” as the Post’s Thiessen put it, they’d have to take seriously the idea that no entity’s enrichment—in any society a moral people wish to be a part of—should be more prized than the health and lives of millions. Are their claims to intellectual property more prized than the lives of one million people? One thousand? One hundred? One? That’s another conversation, and not the one those of us living through a pandemic are having at the moment.

As Baker has pointed out, much of the world’s inequality (and I would clarify: poor health and poverty) is the result of intellectual property laws and their attending “superficial plausibility.” Where is the moral rectitude in the death of millions of people for the protection of a corporation’s stock price, for the ability of that corporation’s board members to live on private islands?

Baker emphasizes that the urgency for sharing intellectual property is greatest in the areas of public health and environment. If, say, a Chinese engineer develops a “new way to store energy, we should want the whole world to get that as quickly as possible,” Baker told me. And Baker’s solution is elegant: governments should buy the rights for the vaccine (or the expert manufacturing technique or the long-life battery) from corporations and make it open access. If they won’t sell, governments should buy the ideas from corporations’ scientists and engineers. “Five million a month for ten months, that would be a fantastic deal,” Baker said. “Would Pfizer really want to bring that lawsuit?”

Russia and China have been criticized for using the distribution of their own vaccines to garner good will with other countries. “The best way to counter that is, why don’t we give our vaccines?” Baker said. The United States could be gaining good will around the globe by overseeing a coordinated effort to make the vaccine more accessible and affordable for everyone. But as distribution stands now, it may take years for herd immunity from vaccination to reach those in poorer countries. Some experts have begun to say that, in this current environment, herd immunity is impossible.

Diplomacy is great, but saving millions of lives is better, particularly when (almost certain) good will is attendant. But the millions of saved lives should always be our focus and indeed our humane objective, attendant good will or not. This should be the new and present standard for American leadership and diplomacy: saving lives as if the ones beyond our borders mattered every bit as much as our own.

By February of this year, the inability of populations outside high-income countries to access vaccines was dire. “Not a single country in sub-Saharan Africa has started immunizations,” Kai Kupferschmidt wrote at Science magazine, while “health care workers [are] dying in places where they are scarce to begin with.” Some exceptions exist (including Seychelles, population ninety-eight thousand, and Mauritius, population 1.3 million; and South Africa rolled out a vaccination program later that month ), but for the most part, Kupferschmidt was right. “Three-quarters of all vaccinations so far have happened in 10 countries that account for 60 percent of global gross domestic product; 130 countries have yet to administer a single dose,” Kupferschmidt wrote at the time. Very little about the system has improved in the past six weeks.

COVAX, the World Health Organization’s effort, formed in conjunction with various other global health initiatives, was established to pool financial contributions to purchase vaccines for middle- and low-income nations. It was founded in 2020 and heavily influenced by the Gates Foundation. COVAX has been only relatively successful at fundraising—it faces a $6.4 billion funding gap this year. “The goal was always limited,” Alexander Zaitchik recently wrote for The New Republic. “It aimed to provide vaccines for up to 20 percent of the population in low-to-middle-income countries. After that, governments would largely have to compete on the global market like everyone else.” While the Trump administration did not join the consortium, the Biden administration has, pledging $4 billion. In recent weeks, COVAX-procured vaccinations began to reach those in need, but structural issues prevail, including the high costs of distribution.

Other challenges, both structural and unforeseen, cripple any effort to bring equity to Covid-19 vaccine distribution, Arthur Caplan, the NYU bioethicist, told me: COVAX doesn’t seem to discern between countries that need the vaccine more than others, nor does it have the influence (or the will) to engage with local politics or corruption that may steer vaccines from needy residents to the elite. “One country that I had some knowledge of was trying to get the vaccine, but they were going to give it to their leaders in the military,” Caplan told me.

The example of COVAX is a bitter one if improving global public health is the objective. Covid-19 has forced us to acknowledge a serious and shameful apathy among wealthy countries toward global poverty and poor health. Caplan called our national malady a “vicious nationalism,” describing our collective attitude as, “it’s sort of three-fifths of a vote for the rest of the world’s population. They just don’t count in the same way,” he said. “There’s some racism built in but it’s, I don’t know, American parochialism. We’re not a worldly people.”

COVAX doesn’t seem to discern between countries that need the vaccine more than others, nor does it have the influence (or the will) to engage with local politics or corruption that may steer vaccines from needy residents to the elite.

The very tentative White House news that Covid-19 medicines and technologies may be liberated from IP protection rules comes almost a year after COVAX was formed and nearly six months after India and South Africa wrote a letter to their World Trade Organization peers requesting that IP laws be dropped to save lives. At least one hundred of the WTO’s 164 members agree with the proposal, but, as you might expect, the Western countries where these pharmaceutical corporations are based have blocked it. The WTO works by consensus.

According to the industry publication Pharmaceutical Technology, opponents of the request also include industry associations like the International Federation of Pharmaceutical Manufacturers & Associations, whose director-general said, “At a time when the focus should be on science and innovation, undoing the very system that supports it is dangerous and counterintuitive.” The U.S. Chamber of Commerce also opposes the request.

“Not only do they get a lot of money guaranteed for work on Covid vaccines,” Caplan told me of Big Pharma, “but they’ve also rebuilt their reputation in a way that no one could have predicted.”

And richer countries’ contracts have left little supply for COVAX to buy, while driving up prices to a degree that makes it difficult for COVAX to compete. “Most vaccine doses have already been purchased by high-income countries; whereas they represent just 16 percent of the global population, high-income countries have purchased 56 percent of vaccine doses,” a February 18 white paper by Kaiser Family Foundation noted.

“The world is on the brink of a catastrophic moral failure,” Tedros Adhanom Ghebreyesus, the Ethiopian Director-General of WHO said in January. He called for governments with easy access to vaccines to inoculate their health care workers and older populations and share what they had left over with those in the highest risk countries so they might do the same. He also called on manufacturers to allocate vaccines equitably. The United States could take the lead, but the Biden administration would have to be willing to shatter some cherished myths about the magic of free-market economies—myths that have been very beneficial for a small group of big pharmaceutical companies.