Over 250 organizations, prominent researchers, and experts support South Africa and India’s recent proposal to temporarily waive World Trade Organization (WTO) rules on intellectual property — including copyright — for the “prevention, containment and treatment of COVID-19.”
The proposal would suspend certain provisions of the WTO’s agreement on Trade-Related Aspects of Intellectual Property (“TRIPS”) to the extent needed for the “prevention, containment or treatment” of COVID-19. The proposal, which would not waive WTO intellectual property rules for other reasons, has over 50 countries co-sponsoring.
Most of the public debate on the proposal focuses on patent barriers to the production of generic versions of vaccines. Some commenters have proposed a way forward by dropping the non-patent issues. Research by the Program on Information Justice and Intellectual Property (PIJIP) helps demonstrate why the inclusion of copyright in the waiver is needed.
One reason the existing TRIPS “flexibilities” for countries to issue compulsory licensing for patents is not adequate to scale up vaccine and treatment production around the world is that patents are not the only barrier. Access to industrial designs, undisclosed information and, yes, copyright is also often necessary.
The process of creating any vaccine or treatment begins with research. It was an artificial intelligence research firm that first discovered the virus outbreak. Subsequently, researchers used text and data mining of scientific publications to identify vaccine and treatment candidates.
The tools needed to make mRNA vaccines are subject to copyright, given that “several computational algorithms and tools are widely used” to create them.
Copyright also hinders the use of critical tools for manufacturing and repairing medical equipment to treat patients. After two Italian engineers 3D-printed replacement valves for ventilators due to local shortages, corporate lawyers quickly “warned” them that this could infringe on intellectual property, including copyrights protecting the component itself or its digital model.
Copyright also covers software embedded in ventilators and other treatment devices. U.S. legislation has been proposed to temporarily suspend copyright to the extent needed to repair such equipment. Sen. Ron Wyden, one of the bill’s sponsors, explained: “It is just common sense to say that qualified technicians should be allowed to make emergency repairs or do preventative maintenance, and not have their hands tied by overly restrictive contracts and copyright laws, until this crisis is over.”
As researchers noted this week, activities that use copyright for research, repair, and developing new products “are not taking place everywhere because they are not lawful everywhere.” At most, 25 percent of the world’s countries have broad enough copyright exceptions to enable text and data mining research, which prompted academics to call for the development of an international agreement on the issue even before the pandemic began.
Pharmaceutical interests are now apparently trying to recruit publishing and entertainment industry lobbyists to oppose the waiver, claiming that it somehow would harm authors and musicians. This may be useful to distract from the threats posed by Pharma monopoly control of COVID vaccine manufacturing, but is without merit.
First of all, there is no final text for the TRIPS waiver proposal. This makes claims that the waiver goes too far and threatens to rights to profit from the sale of common entertainment goods, especially specious. Indeed, defining the scope of the waiver would be the next step if the U.S. stops blocking negotiations.
Even under the initial proposal outline, the waiver would not render every copyrighted work free to use for any purpose. Streaming movies, downloading songs, and reading novels do not prevent, contain or treat COVID-19. The waiver would have no effect on the income of musicians, for example, because music does not combat COVID.
It is odd to see publishers complaining about losses to authors when their own profits are increasing. Bloomsbury, best known for publishing the Harry Potter books, recently reported its best half-year profits since 2008 (up 60%). The Association of American Publishers reports year-to-date sales in all categories in 2020 increased $13.6 billion. Meanwhile, their collective management agents extort additional licenses for telework, warning that otherwise “your organization is leaving itself open to legal action for copyright infringement.”
Copyright limitations and exceptions exist to protect the broader public interest from limited monopoly rights that governments grant to incentivize and reward creative expression. When the public interest demands, exceptions must be expanded. The public interest today demands that all countries expand exceptions for research and development necessary to treat and prevent COVID. We can’t let false claims about threats to the entertainment industry stand in the way.