Property or public good? Rethinking intellectual property in global health emergencies
By Joanne Koulet-Vickot
As the legal groundwork for innovation, security, investment, and the sharing of knowledge, intellectual property (IP) rights protect the interests and endeavors of creators. By providing an exclusive right to control how a creation is disseminated, reproduced, and sold, IP rights allow creators to exclusively benefit from their work for a limited time. There are many forms of IP rights, namely trademarks, copyrights, and patents, among others. Trademarks protect brand names, logos, and symbols, distinguishing between, for example, the slick Nike check and a duplicate from another manufacturer. Copyrights are mainly applied to art, for instance, protecting artists from discovering their works randomly (and badly) replicated on a shirt. Patents—the most well-known form of IP rights—protect inventions, including products and their processes. Criticisms about how patent systems affect less-economically developed countries have grown in recent years, though, particularly in the context of the COVID-19 pandemic.
During the COVID-19 pandemic, countries in the Global South (i.e., countries with lower economic and industrial development) faced significant barriers with accessing medical equipment, including vaccines, ventilators, and personal protective equipment. Pharmaceutical companies, often based in the Global North, prioritized distributing equipment to wealthy countries in the region that had the financial means to purchase them. Furthermore, when countries in the Global South attempted to produce generic versions of the equipment, they were limited by IP laws, particularly the high costs of acquiring and maintaining patents or permissions. IP laws also raised concerns about whether the rapid production of essential equipment should take precedence over formally going through extensive patent processes, heightening the risk of infringement lawsuits and creating a complex legal framework for trading medical equipment. In all, IP laws created a legal maze for less-economically developed countries, delaying access to life-saving technologies. It begs the questions: to what extent can life-saving technologies legally be considered private property during a global pandemic? To what extent are intellectual property rights morally justified in the context of a global health crisis?
Firstly, international law establishes some flexibility with IP laws, specifically during crises. To create an international standard for IP rights, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement was established in 1995. TRIPS obligates governments to have minimum protections and enforcement for intellectual property held by nationals of the World Trade Organization member states. Although the agreement stipulates a narrow framework for following intellectual property, it also gives legal provisions for countries to bypass IP laws. For instance, Article 31 of TRIPS establishes compulsory licensing, which enables the use of a product or process without the owner’s consent during a national emergency. Moreover, international law provides an avenue for countries to voice their concerns. In 2020, South Africa and India proposed a waiver for certain provisions of TRIPS, namely suspending the implementation of certain sections until global COVID-19 vaccination and immunity standards were met. In response, the World Health Organization (WHO) adopted the WHO Pandemic Agreement in 2025, reaffirming global recognition of the flexibility provided by TRIPS in specific global emergencies. In all, international institutions provide an avenue, albeit limited, that allows IP laws to be superseded.
Similarly, legal mechanisms to override IP laws already exist in several countries. In the United States, the Defense Production Act of 1950 enables such veto power over IP laws. The act allows the executive branch to expand and accelerate domestic industrial production to ensure the supply of materials needed to respond to national crises, including pandemics. In regards to intellectual property, the government can contractually require private companies to manufacture needed items without authorization from patent holders. In such cases, neither the government nor the manufacturer gains ownership of the patent, but they retain the right to use the product or process for a limited period of time. Subsequently, if the patent holder files an infringement claim, only the government, not the manufacturer, can be sued in the Court of Federal Claims “for the recovery of his reasonable and entire compensation for such use and manufacture” of their invention. Likewise, China has employed orders and judicial precedents to supersede IP rights. During the COVID-19 pandemic, China issued several directives such as the Urgent Notice on Coordinating and the Resumption of Production of Epidemic Prevention and Control Key Material Production Enterprises. The government used the directive to manage private companies and allocate the production of essential medical equipment. Although the companies weren’t penalized for non-compliance, the directives were largely considered mandatory. Overall, several countries don’t view IP rights as entirely protected or justified, and they provide mechanisms to bypass them when necessary.
On a broader scope, IP laws can arguably conflict with international human rights, namely the right to adequate health. According to the United Nations International Covenant on Economic, Social and Cultural Rights, a binding treaty ratified by 173 countries, every individual has a right “to the enjoyment of the highest attainable standard of physical and mental health”—a right only fully realized when countries take the necessary steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”. During the COVID-19 pandemic, IP laws often conflicted with such efforts. For instance, in the early 2000s, South Africa faced a rampant HIV/AIDS epidemic, exacerbated because branded drugs were priced beyond the reach of most people. In attempting to import generic anti-retroviral drugs, several pharmaceutical companies filed a suit: Pharmaceutical Manufacturers Association of South Africa v. The South African government (2001). In the case, the plaintiffs argued that the South African government was infringing on their patent rights. While international scrutiny eventually pressured the companies to withdraw the lawsuit, had the court sided with the companies, the enforcement of strict IP laws would have restricted access to life-saving medication, consequently violating the human right to health. Overall, in a global health crisis, prioritizing IP laws over human rights obligations casts doubt on their justification.
Ultimately, while IP rights are important—they encourage innovation, stimulate demand, and foster competition—global health emergencies, namely the COVID-19 pandemic, have exposed the limitations of a global health system restricted by IP laws. With the existence of numerous international and national frameworks that set the limitations for IP rights during crises, there’s a recognized legal prioritization of global health concerns over exclusive commercial interests. Frameworks such as the TRIPS Agreement and human rights covenants on an international level, as well as domestic laws such as the Defense Production Act, provide mechanisms for countries to address emergencies without the strict regulations of IP laws. Despite the existence of these flexibilities, their application remains politically and logistically complex. They’re also often targeted by medical companies and countries in the Global North seeking to maintain monopolies on the health industry and maximize profit. Moving forward, perhaps there needs to be stronger legal and equity-driven flexibilities for IP laws to ensure legal protections don’t become barriers to human need.
