Pandemic highlights flaws in EU-Canada trade agreement CETA

Analysis has pointed out that CETA would make medicines more expensive. This would be the case in Canada, as Canada would have to strengthen its patent laws. Stronger patent protection raises the income of pharmaceutical companies, but makes medicines more expensive.

As far as I can see, the EU would not have to change its laws. It generally works the other way around: the EU adopts strong patent protection on its own, and then exports its rules in trade agreements. It gives its industries a stronger position in the world – at the expense of access to medicines. But also at the expense of its ability to reform its own laws. It throws away policy space.

Corona virus

Enter Corona virus. Doctors try to save lives; scientists work in their labs. Health advocates point out our rules limit our ability to fight the pandemic. It’s a sorry state of affairs we need health advocates to do this. Some examples of their crucial work:

Costa Rica suggests creating a repository of information on diagnostic tests, devices, medication or vaccines, with free access or licensing on reasonable and affordable terms, in all member countries of the WTO.

400+ Civil society groups and individuals endorse letter to World Intellectual Property Organization: intellectual property rights should not hinder efforts to fight COVID-19 & its consequences.

“Researchers discovered the spread of the virus through a text and data mining project analyzing copyrighted news articles, enabled by Canada’s flexible fair dealing right for research purposes.”

Christopher Garrison calls for urgent collective action to meet the challenge of this pandemic crisis: a Coronavirus related intellectual property pool.

“Valuable time cannot be wasted in engaging in protracted negotiations with those intellectual property rights holders or campaigns to persuade them to co-operate.”

Earlier, the U.S., EU, Canada and other countries unfortunately waived the right to import patented drugs or vaccines manufactured under a compulsory license in foreign countries. Health advocates ask these countries to reverse the earlier decision.

Joseph Stiglitz, University Professor, Columbia University, and recipient of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel 2001 commented:

“Life should always be put before profits, and never more so than in the midst of a pandemic. The WTO should not have rules that deliberately create barriers to importing needed drugs, whether it’s rich countries or poor; and especially so because those rules limit the ability of firms to achieve efficient economies of scale. The opt-out provision in Article 31bis is protectionism at its worst—where it is lives that may be lost as a result–and something clearly not in the interests of any country, large or small, importer or exporter, during the COVID-19 crisis.”

Ruth Lopert, Adjunct Professor, Dept of Health Policy and Management, George Washington University, stated:

“Whether motivated by appeasement or hubris, it’s ironic that in deciding to opt out, high income countries never anticipated the day they might themselves need 31bis.”

Our rules limit our ability to fight a pandemic. Moreover, they limit access to medicines every day. What to do after the pandemic? Return to business as usual? Or worse? Brook K. Baker warns for a wave of pro-IP proposals from industry in the wake of the COVID-19.

That would definitely be a step in the wrong direction.

CETA, crises response, ISDS

During a pandemic countries can issue compulsory licenses on patents. CETA’s intellectual property rights provisions do not seem to harm access to medicines during the pandemic.

However, CETA also contains supranational investor-to-state dispute settlement, which through its harsh protection of investments limits our ability to respond to crises. Some of the actions countries will take to fight the pandemic may be less considerate towards commercial interests than in other times. States and the public pressured Roche to release a secret recipe needed for tests. Compulsory licenses and compensation may come with conflicts.

Companies could use ISDS against the EU, member states and Canada. ¹ Lawyers are already sharpening their knives. We have to avoid CETA being used for ISDS, by not ratifying CETA.

Policy space

Let’s return to policy space. Monopoly based drug development is failing the world. We need affordable medicines not just during a pandemic. We need open science and research practices for global health needs that align innovation and timely access. We need the policy space to implement these practices.

The pandemic opens policy space – which we shouldn’t close afterwards. Beyond access to medicines, the Financial Times editorial board states:

“Radical reforms – reversing the prevailing policy direction of the last four decades – will need to be put on the table. Governments will have to accept a more active role in the economy.”

We can not go back to business as usual (also in the light of climate change). We need a fundamentally more resilient society, with more agency – and we may have a one time chance now. We have to rethink international rules that limit crucial policy space, and not ratify trade agreements, like CETA, that do. At the very least, ISDS has to be removed.