1. Drugmakers say Biden misguided over patent waiver
U.S. President supports waiving intellectual property rights for COVID vaccines
Drugmakers on Thursday said U.S. President Joe Biden’s support for waiving patents of COVID-19 vaccines could disrupt a fragile supply chain and that rich countries should instead share more generously with the developing world.
Mr. Biden on Wednesday threw his support behind waiving intellectual property rights for COVID-19 vaccines, angering research-based pharmaceutical companies.
If adopted by the WTO, the proposal would invite new manufacturers that lack essential know-how and oversight from the inventors to crowd out established contractors, the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) said.
“I have heard many (vaccine makers) talking about ‘our resources are stretched, our technicians are stretched’,” IFPMA Director General Thomas Cueni told Reuters. He warned of a possible free for all if “sort of rogue companies” were allowed to become involved.
Vaccine developers echoed his comments that waiving intellectual property rights was not a solution.
Germany’s CureVac, which hopes to release trial results on its messenger ribonucleic acid (mRNA) vaccine as early as this month, said patents were not to blame for bottlenecks.
“Since mRNA technology has emerged as the key technology in the fight against COVID-19, the world now needs the same raw materials in unfathomable amounts. The biggest problem is how to coordinate this,” a spokeswoman said.
In contrast, the GAVI vaccine alliance, which co-leads the COVAX dose-sharing programme with the WHO and faces major supply constraints, welcomed Mr. Biden’s support for waiving intellectual property rights.
Intellectual Property Rights
- Intellectual property rights (IPR) are the rights given to persons over the creations of their minds: inventions, literary and artistic works, and symbols, names and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
- These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
- The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).
Intellectual property rights are customarily divided into two main areas:
(i) Copyright and rights related to copyright:
- The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.
(ii) Industrial property: Industrial property can be divided into two main areas:
- Protection of distinctive signs, in particular trademarks and geographical indications.
- Trademarks distinguish the goods or services of one undertaking from those of other undertakings.
- Geographical Indications (GIs) identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.
- The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services.
- The protection may last indefinitely, provided the sign in question continues to be distinctive.
- Industrial designs and trade secrets: Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.
What is the need of IPR?
The progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture.
- Encourages innovation: The legal protection of new creations encourages the commitment of additional resources for further innovation.
- Economic growth: The promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
- Safeguard the rights of creators: IPR is required to safeguard creators and other producers of their intellectual commodity, goods and services by granting them certain time-limited rights to control the use made of the manufactured goods.
- It promotes innovation and creativity and ensures ease of doing business.
- It facilitates the transfer of technology in the form of foreign direct investment, joint ventures and licensing.
India and IPR
- India is a member of the World Trade Organisation and committed to the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement).
- India is also a member of World Intellectual Property Organization, a body responsible for the promotion of the protection of intellectual property rights throughout the world.
- India is also a member of the following important WIPO-administered International Treaties and Conventions relating to IPRs.
- Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure
- Paris Convention for the Protection of Industrial Property
- Convention Establishing the World Intellectual Property Organization
- Berne Convention for the Protection of Literary and Artistic Works
- Patent Cooperation Treaty
- Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks- Madrid Protocol
- Washington Treaty on Intellectual Property in respect of Integrated Circuits
- Nairobi Treaty on the Protection of the Olympic Symbol
- Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
- Marrakesh Treaty to facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.
National IPR Policy
- The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country.
- It’s clarion call is “Creative India; Innovative India”.
- It encompasses and brings to a single platform all IPRs, taking into account all inter-linkages and thus aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.
- It sets in place an institutional mechanism for implementation, monitoring and review. It aims to incorporate and adapt global best practices to the Indian scenario.
- Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed as the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.
- The ‘Cell for IPR Promotion & Management (CIPAM)’, setup under the aegis of DIPP, is to be the single point of reference for implementation of the objectives of the National IPR Policy.
- India’s IPR regime is in compliance with the WTO’s agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
- IPR Awareness: Outreach and Promotion – To create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
- Generation of IPRs – To stimulate the generation of IPRs.
- Legal and Legislative Framework – To have strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
- Administration and Management – To modernize and strengthen service-oriented IPR administration.
- Commercialization of IPRs – Get value for IPRs through commercialization.
- Enforcement and Adjudication – To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
- Human Capital Development – To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
Achievements under new IPR policy
- Improvement in GII Ranking: India’s rank in the Global Innovation Index (GII) issued by WIPO has improved from 81st in 2015 to 52nd place in 2019.
- Strengthening of institutional mechanism regarding IP protection and promotion.
- Clearing Backlog/ Reducing Pendency in IP applications: Augmentation of technical manpower by the government, has resulted in drastic reduction in pendency in IP applications.
- Automatic issuance of electronically generated patent and trademark certificates has also been introduced.
- Increase in Patent and trademark Filings: Patent filings have increased by nearly 7% in the first 8 months of 2018-19 vis-à-vis the corresponding period of 2017-18. Trademark filings have increased by nearly 28% in this duration.
- IP Process Re-engineering Patent Rules, 2003 have been amended to streamline processes and make them more user friendly. Revamped Trade Marks Rules have been notified in 2017.
- Creating IPR Awareness: IPR Awareness programs have been conducted in academic institutions, including rural schools through satellite communication, and for industry, police, customs and judiciary.
- Technology and Innovation Support Centres (TISCs): In conjunction with WIPO, TISCs have been established in various institutions across different states.
Issues in India’s IPR regime
- Section 3(d) of the Indian Patent Act 1970 (as amended in 2005) does not allow patent to be granted to inventions involving new forms of a known substance unless it differs significantly in properties with regard to efficacy.
- This means that the Indian Patent Act does not allow evergreening of patents.
- This has been a cause of concern to the pharma companies. Section 3(d) was instrumental in the Indian Patent Office (IPO) rejecting the patent for Novartis’ drug Glivec (imatinib mesylate).
- Issue of Compulsory licencing (CL): CL is problematic for foreign investors who bring technology as they are concerned about the misuse of CL to replicate their products. It has been impacting India-EU FTA negotiations.
- CL is the grant of permission by the government to entities to use, manufacture, import or sell a patented invention without the patent-owner’s consent. Patents Act in India deals with CL.
- CL is permitted under the WTO’s TRIPS (IPR) Agreement provided conditions such as ‘national emergencies, other circumstances of extreme urgency and anti-competitive practices’ are fulfilled.
- India continues to remain on the United States Trade Representative’s (USTR’s) ‘Priority Watch List’ for alleged violations of intellectual property rights (IPR).
- In its latest Special 301 report released by the United States Trade Representative (USTR), the US termed India as “one of the world’s most challenging major economies” with respect to protection and enforcement of IP.
- Data Exclusivity: Foreign investors and MNCs allege that Indian law does not protect against unfair commercial use of test data or other data submitted to the government during the application for market approval of pharmaceutical or agro-chemical products. For this they demand a Data Exclusivity law.
- Enforcement of the Copyright act is weak, and piracy of copyrighted materials is widespread.
2. Russia approves one-dose ‘Sputnik Light’
Russia has authorised Sputnik Light, a single dose vaccine against COVID-19, for use. Sovereign wealth fund Russian Direct Investment Fund (RDIF) on Thursday said the move will pave way for immunisation of a larger number of people in a shorter timeframe.
Sputnik Light is the first component — recombinant human adenovirus serotype number 26 (rAd26) — of Sputnik V vaccine that has been approved by over 60 countries, including India.
CEO Kirill Dmitriev said Sputnik Light will be “exported to our international partners to help increase the rate of vaccinations in the face of ongoing fight with the pandemic and new strains of coronavirus”. At less than $10, the vaccine will also be affordable, he said.
There is a big interest already in Sputnik Light and it is likely to be registered in several countries as early as next week. “It can be used as a booster shot for other vaccines. Cocktail of vaccines like Sputnik V is the way to go, and they work very well,” he said. A RDIF statement said Sputnik Light demonstrated 79.4% efficacy. The efficacy of Sputnik V was 92%.
3. China halts economic dialogue with Australia
Beijing blames Cold War mindset, ideological discrimination
China on Thursday cut off a channel for diplomatic and trade talks with Australia in a largely symbolic act of fury, following clashes over a wide range of issues, including human rights, espionage and the origins of COVID-19.
Tensions between the two sides have soared since Canberra called last year for an independent probe into the origins of the pandemic and banned telecom giant Huawei from building Australia’s 5G network.
China — Australia’s biggest trading partner — has already imposed tariffs or disrupted more than a dozen key industries, including wine, barley and coal, decimating exports.
In the latest volley, the China-Australia Strategic Economic Dialogue was pulled “based on the current attitude” of the Australian government, China’s National Development and Reform Commission said in a statement on Thursday, blaming some officials of a “Cold War mindset” and “ideological discrimination”.
Beijing will “indefinitely suspend all activities under the framework” of the agreement, the statement added.
Australia called the decision “disappointing”, with Trade Minister Dan Tehan saying the dialogue had provided an important forum for the two countries — though he added that no such talks had taken place since 2017.
It was not immediately clear if the row would impact on a free-trade agreement between the two that came into effect in 2015.
Canberra has previously described the avenue for talks — designed to boost trade between both sides and introduce large Chinese investors — as one of the “premier bilateral economic meetings with China”.
It called the first meeting in 2014 a chance for “closer economic ties” but relations between the two have since sunk into deep freeze.
- Trade: China is Australia’s largest trading partner in terms of both exports and imports. China’s share in Australia’s exports reached a record A$117 billion, or 38 per cent, in 2019, more than any other country.
- Investment: Over the years, China has been increasing its investment in Australian infrastructure and real estate products too.
- Tourism & Education: The maximum number of foreign students in Australian universities and tourists also originate from China.
- Important Sectors: Australian sectors like mining, tourism, education benefit from trade with China. China even imports products such as milk, cheese, wine and meat
Points of friction
This year, many issues have dominated the deteriorating relationship between the two countries.
- Australia’s Covid-19 inquiry and China’s Economic response
- In April 2020, Australia suggested the start of an inquiry into the origins and the initial handling of the coronavirus.
- China alleged that Australia was teaming up with the US to spread “anti-China propaganda”.
- China further called for boycotting Australia as a tourist and higher education destination and banning Australian products like wine and beef.
- In May, Chinese authorities imposed an 80 per cent tariff on barley imports coming from Australia. China is the most important market for Australia barley.
- China also began a trade probe into Australian wine and suspended import permits for four large beef processing plants.
- Tension over journalists
- The second diplomatic spat began with the detention of Cheng Lei, an Australian news anchor based in Beijing by the Chinese authorities after she was suspected of “criminal activities” that endangered China’s national security
- After this, two more Australian journalists working in China were questioned and declared persons of interest in the Cheng Lee detention case
- Following their house searches, the journalists sought refuge in Australian diplomatic missions, as they were not allowed to leave the country.
- The tensions were on full display for five days after which China finally agreed to allow them to fly back to Australia.
- After their departure, there are no more Chinese reporters employed by the Australian media left in the country, a first since the 1970s.
- Few days after their departure, China’s state news agency Xinhua released a report that claimed the Australian intelligence had raided an unspecified number of Chinese journalists stationed in Australia
- Ideological issues
- The two countries have also been at loggerheads on other ideological issues previously too.
- After reports of China keeping Uighur Muslims in state-run detention camps surfaced, Australia was swift to respond and expressed “deep concern” over the “human rights situation.”
- Similarly, after China imposed the National Security Law in Hong Kong, Australia suspended its extradition treaty with Hong Kong and said the law undermines Hong Kong’s autonomy and suppresses opposition to Mainland China
- Australia also decided to extend visas for Hong Kong residents. In both instances China responded staunchly and asked Australia to not meddle in its “internal matters.”
What is the impact on India?
- Australia has started looking for way to wean itself away from this excessive Chinese dependence and is keen to strengthen its ties with more ideologically compatible allies like India.
- Thus, there is scope to increase the India-Australia bilateral trade and investment.
- Australia has expressed the need to connect with more “like-minded democracies” to counter the Chinese aggression and expansion.
- At the Quadrilateral Initiative, or the “Quad” with counterparts from India, United States and Japan, Australian highlighted the need for an “open, resilient and inclusive Indo-Pacific region that is governed by rules and not power.
- The QUAD meeting in 2020 comes at a time when three out of four participant countries are at loggerheads with China on some issue or another.
4. Editorial-1: Social murder and the missing state
The defence that the government is not responsible for the present crisis has consequences for India’s democracy
When people are placed under conditions which appeal to the brute only, said Friedrich Engels, what remains to them but to rebel or to succumb to utter brutality?
The scenes that are being witnessed in India now are apocalyptic in tone. When a citizen attacks hospital personnel because a life was lost due to the absence of medical care, or a citizen struggles to breathe with an oxygen cylinder on the pavement, it is a crisis at multiple levels.
But what is concerning, more than the “collapse of the system” or the failure of the state, is the shocking discourse among the supporters of the government that it is not responsible for the present crisis, arguably, India’s gravest hour.
This defence has consequences for India’s democracy.
Engels had argued that the English ruling class and the state had created such horrendous working and living conditions for the workers, without the “necessaries of life”, that they suffer not only ill health but meet early deaths. Engels calls this social murder, the same as murder by an individual; the only difference is that this murder is “disguised”, for “no man sees the murderer” and the death appears to be a “natural one”.
What we are seeing around, in our inability to make the state accountable, is social murder. The only difference between Engels’ England in the 1840s, when it was the working class which was devastated by pandemics, and India now, is that the pandemic in this wave is not just preying on the most vulnerable populations. Therefore, it is also not invisible any longer.
The state’s actions
But in the first wave of the pandemic in India, the tragic plight of millions of inter-State migrant labour walking thousands of kilometres, remained invisible. That was a classic case of social murder. And it was justified then as well in narratives which argued that, after all, it was the responsibility of the workers themselves for “voluntarily” undertaking such a journey. Just as it is the responsibility of the people themselves for causing the second wave. Yet, ironically, when the successful defeat of COVID-19 was celebrated in February by an official resolution of the Bharatiya Janata Party, it was the leadership of Prime Minister Narendra Modi that was given credit, not the people.
When ordinary people, without access to expert advice, are asked to own up to their mistakes, powerful actors such as the Election Commission of India holding an eight-phase election in Bengal, the Uttarakhand Chief Minister justifying the Kumbh mela and the Prime Minister exulting about the size of an election rally crowd in West Bengal on a day when over 2,00,000 Indians were newly infected by the novel coronavirus, are all unassailable actions of the state.
By participating in the state’s abdication of responsibility, one is fostering conditions of social murder. The argument that cremations cannot be shown by the media because they are “sacred” to Hindus is a part of this act. Other than the obvious fallacy that Hindu cremations are not televised or recorded, here, the more critical questions such as how many deaths could have been prevented by a simple provision of oxygen, why people are forced to cremate their loved ones in parking lots or pavements, and if that is any less dignified than telling the story to the world remain unanswered.
As epidemiologists assert, obfuscating the real gravity of a pandemic is the dangerous path to a bigger disaster. If the Chinese state had not hidden the pandemic in its initial stages, the world probably would have not been at this juncture. That is why there has been such a sustained focus by the world media on hotspots where death tolls mounted: Italy, Iran, the United States, the United Kingdom, Brazil, Peru, etc,. But the tragedy in India is sought to be portrayed as a cultural exceptionalism that cannot be televised.
A different patrimonialism
In the last seven years, the Indian state has acquired distinct tendencies of what sociologist Max Weber has called patrimonialism in which the ruler exercises a traditional form of authority which rests on the “sanctity of immemorial traditions”, in contrast to a rule based on a rational-legal bureaucracy or impersonal rules. But unlike in ideal typical patrimonialism, this highly personalised and centralised form of rule is not based on heredity, kinship ties or personal allegiances, rather on the ideology of religious majoritarianism as well as nationalism, and legitimised by election wins. Duty, patriotism, etc., become keywords here as was tellingly witnessed during the misery unleashed by demonetisation.
Ironically, this patrimonial government, which prided itself as a ‘mai-baap sarkar’, the dispenser of benevolence towards subjects, overnight transforms itself into one which asks citizens to fend for themselves, whether it is by procuring oxygen cylinders or arranging ambulances. This has resulted in a Social Darwinism in which only the most powerful have some chance of survival.
From the assertions of the Union Health Minister that there never was any shortage of oxygen, the Uttar Pradesh government charging people with First Information Reports (FIRs) for requesting oxygen, to the Haryana Chief Minister’s comment that the dead cannot return and, therefore, it was pointless to discuss many unaccounted deaths, all depict a state that has shed its professed benevolence during the novel coronavirus pandemic.
As scholars identify, one of the fundamental problems in patrimonialism is ensuring accountability, something that becomes stark during a pandemic when the patrimonial state goes missing. On the one hand, we have the belated act of sanctioning oxygen plants by the Prime Minister, which, keeping in line with governance as benevolence, is met with cabinet Ministers expressing their gratitude in unison. On the other, the Prime Minister has not addressed a single press conference on COVID-19, quite a stunning fact globally for the head of a democracy.
Become citizens, not subjects
While the Swedish Prime Minister was recently subject to questioning by a constitutional committee on COVID-19 handling, the present Indian state has no means of ensuring a critical scrutiny of the chronology of government decisions that led to the current crisis. For the moment, we will have to be content with scathing observations like those of the Allahabad High Court that deaths due to lack of oxygen are no “less than a genocide”.
Engels had argued that the English ruling class’ “class prejudice and preconceived opinions” had enveloped it in a “mad blindness” about the social murder that was happening in its midst, which, in any case, did not affect it. India, under the pandemic, is seeing a different kind of prejudice, preconceived opinions and mad blindness in sanctioning social murder. Unless people become citizens and not subjects under a patrimonial rule, the calamitous clouds of the pandemic portend a bleak future for Indian democracy as well.
5. Editorial-2: A lending hand
The RBI has signalled it is aware of the burden on health-care providers during this period
The Reserve Bank of India’s move on Wednesday to step in and join the fight against the second wave of the pandemic through the announcement of measures aimed at alleviating any financing constraint for those impacted, including the health-care sector, State governments and the public, is a welcome and timely intervention. The furious pace at which new COVID-19 infections and fatalities have been mounting in recent weeks has not only overwhelmed the nation’s health infrastructure but has begun to significantly impair economic activity, just as the economy appeared to have turned the corner from last year’s debilitating contraction. “The fresh crisis is still unfolding,” Governor Shaktikanta Das said in his unscheduled address, acknowledging the challenge ahead. Stressing that it is imperative to both save lives and restore livelihoods, Mr. Das proposed a calibrated response, mooting a ₹50,000 crore term liquidity facility to boost credit availability for ramping up COVID-related health-care infrastructure and services. Lenders have been urged to expedite lending under this ‘priority sector’ classified scheme to entities including vaccine manufacturers, hospitals, pathology labs, suppliers of oxygen and ventilators, importers of COVID-related drugs and logistics firms. And although Mr. Das said the scheme would also cover patients requiring treatment, he failed to spell out how those most in need of financial assistance to cover their surging medical bills could borrow the funds. In directing the flow of credit to the sector most in focus at the moment, the RBI has signalled it is cognisant of the burden on health-care and allied providers. However, how much lending capital-stressed banks would be willing to write into their ‘COVID loan books’ remains to be seen.
The central bank’s focus on small borrowers including unorganised businesses and MSM enterprises, both through enhanced provision of credit via small finance banks and a fresh resolution framework for existing borrowings, is also heartening as these economic participants were already among the worst-hit during last year’s contraction. However, the norms laid down for resolution including the proviso that only those borrowers who had not already availed of restructuring assistance and whose loans were ‘standard’ as on March 31, 2021, would be eligible for fresh resolution lays an onerous burden on those that the RBI itself admits are the ‘most vulnerable’. Mr. Das was also unreasonably sanguine about the economic impact of the second wave, even as he granted that “high frequency indicators are emitting mixed signals”. The RBI’s position that the dent to aggregate demand is likely to be only moderate is based on the fact that so far this year, the restrictions to contain the spread of the virus have been largely localised. With more and more voices from the Opposition to top industry groups urging a nationwide lockdown to break the chain of transmission, Mr. Das may need to very quickly revisit his assumptions.