By Rithika Sangameshwaran
In January 2021, Achim Kessler, member of the Left Party of Germany (known as Die Linke) co-submitted a motion in the Bundestag (Parliament). It called on the German Federal Government to support the TRIPS waiver. After months of deliberation, the motion was rejected in May 2021, with majority members voting against it. While they unanimously agreed that more needed to be done to increase global vaccine production, just like at the WTO, they differed on ways to achieve it.
“There is a difference even within the government, between members of the Social Democratic Party (SPD) and members of the conservative party. Some members of the Social Democrats have been more open. They also rhetorically supported the TRIPS waiver. But when it came to voting, and to the final votes, they opposed it,” Achim Kessler told Geneva Health Files.
First proposed by South Africa and India in October 2020, the TRIPS waiver proposal seeks to expand access to COVID-19 vaccines, diagnostics and related medical products by temporarily relaxing certain intellectual property rules. Almost a year later, the EU, led by Germany, remains a prominent opponent to the waiver. Notwithstanding the farrago of arguments against the waiver, it is useful to examine Germany’s reasons for doing so.
This story maps German policy positions and politics on intellectual property and its implications for the TRIPS Waiver discussions.
The politics of scientific knowledge: who owns it and who gets to use it?
The belief that relaxing patents would impede innovation was one of the main reasons for rejection of the Left’s motion. Responding to a question thereon, the federal government stated that it was skeptical about the need for a waiver. It added (translated from German; can be accessed here):
“The European Commission, which leads the negotiations in the TRIPS Council for the member states of the EU, has not yet been convinced by the arguments put forward, according to which intellectual property rights represent a barrier to increasing global production capacities for vaccines against Covid-19. It sees the protection of intellectual property rights as an essential stimulus for research and development of new vaccines and drugs. This position of the European Commission is shared by the German government. The current international and national legal framework for the protection of intellectual property rights already provides the basis for patent holders to grant other companies (voluntarily) licenses for the use of their pharmaceutical invention. Private companies are already making extensive use of this possibility of cooperation to expand the necessary resources and should do so even more in the current pandemic. If voluntary solutions to increase production are not sufficient, the TRIPS Agreement already enables the granting of patent compulsory licenses at national level.”
Germany, and in particular, Chancellor Angela Merkel’s party, the Christian Democratic Union of Germany (CDU), places great importance on intellectual property (IP) as a driver for innovation and considers it inviolable. “I think to understand Germany’s opposition to the waiver, we have to look back on German beliefs on IP rights. And I think in particular, in the German conservative party there is a strong belief that IP is key and an important incentive for creation of medical tools.” Lara Dovifat, International Campaign Manager at Médecins Sans Frontières (MSF) told Geneva Health Files in an interview.
However, this view does not acknowledge the importance of the ‘no-strings attached’ public investments that allowed the speedy development of vaccines. The German government awarded $445 million to BioNTech and $298 million to CureVac. “I think it’s a longstanding tradition in Germany that the German government funds medical research and development and yet allows private companies to hold a monopoly. This is an ethical and moral failure,” Dovifat added.
The role of IP as the primary incentive for R&D is debatable considering that some of the largest pharmaceutical companies, including Pfizer and J&J, rejected an EU proposal to develop vaccines against priority pathogens including coronaviruses in 2017. Further, ample evidence from present and past health emergencies, debunk the disingenuous claims of IP not being a barrier to lifesaving products.
While an analysis of the strengths and weaknesses of the IP system is beyond the scope of this article, it is interesting to note the concurrent emphasis on pathogens-sharing in this context. The rapid sharing of genomic data that contributed to vaccine development is desirable and even encouraged by the same countries filibustering the waiver. However, the resultant scientific knowledge and its benefits are not shared with similar fervour.
Photo by Animesh Srivastava from Pexels
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