Who owns COVID-19 vaccines?

How long does Mickey Mouse need copyright protection in order to defend Walt Disney’s rightful ownership? Copyright thwarts copycats from profiting off the mouse, which seems right since it was Disney’s idea. The copyright for “Steamboat Willie,” the film where our favorite mouse made his debut, ends Jan. 1, 2024, exactly 100 years after the copyright’s 1924 establishment. Why does it take that long? If the copyright had lasted just 25 or 50 years, would Mickey’s creator have decided not to make Mickey? 

Another way to ask the question is, how much prospective profit does it takes to spur new ideas and products? The World Trade Organization is considering temporarily waiving its 1995 agreement that protects intellectual property (IP) for COVID-19 vaccines and treatments. If IP is temporarily waived during the pandemic, would pharmaceutical companies stop innovating? Would medical progress slow?

It strains credulity to think that. In 2021 alone, Pfizer/BioNTech will score $15 billion to $30 billion for COVID-19 vaccine sales, while Moderna could rake in $18 billion to $20 billion and Johnson & Johnson $10 billion. Couldn’t these companies have earned less while the incentive to innovate remained intact?

In a paper published in The Journal of Medical Ethics, we developed an evidence-based distinction between profits necessary to drive innovation and profits exceeding this. Since the profits of large pharmaceutical companies are substantially higher than those of other (non-pharmaceutical) large companies on the S&P 500 index, we concluded that big pharma could earn less profit without significantly sacrificing scientific innovation. 

The argument for waiving IP is even stronger during the COVID-19 pandemic, when the usual costs of vaccine research and development are substantially offset by governments, which poured billions into procuring raw materials, financing clinical trials, and retrofitting factories for drug companies. While Pfizer distanced itself from Operation Warp Speed, it benefitted from upstream public investment in research, and it struck a $1.95 billion advance purchase agreement with the U.S. government for COVID-19 vaccines.

Yet, Bill Gates has lobbied against waiving patents and argued that practically speaking, it’s too late for a patent waiver on COVID-19 vaccines to have any significant effect on vaccinating the world. He’s right that waiving patents is not enough. But, removing the threat of being sued or prosecuted would help break the logjam — creating a climate favorable to investing and encouraging the knowledge and technology transfer low- and middle-income countries need to expand drug manufacturing capacity.

While originally opposed to waivers, the Bill & Melinda Gates Foundation reversed course and now supports temporarily waiving COVID-19 vaccine patents, as do 100 Nobel Laureates and 75 leaders of nations, including President Joe Biden.

Yet a further argument against temporary waivers for COVID-19 vaccines is that drug companies own the products of their labor. Yet do they? Vaccines are in fact the final, translational part of product development that is years in the making and involves enormous upstream investment. In a 2021 review of published research on the technologies used in candidate COVID-19 vaccines, researchers found that these technologies were funded primarily by the public sector, principally governments. Beyond governments, there are immeasurable contributions others make. Simply put, science is a social product. Invention and thought do not occur in a vacuum but depend on the thoughts and ideas of those who came before.

Since COVID-19 will not be the last pandemic humanity faces, expanding vaccine manufacturing is necessary preparation for future pandemics. The WHO reports that 80% of global sales for COVID-19 vaccines come from five large multinational corporations. Increasing the number of manufacturers globally would not only increase supply and reduce prices but minimize disruptions of the kind that occurred when India halted vaccine exports amid a surge of COVID-19 cases. Dr. John Nkengasong, a Cameroonian virologist and director of the African Centers for Disease Control and Prevention, puts the point bluntly, “Can a continent of 1.2 billion people — projected to be 2.4 billion in 30 years, where one in four people in the world will be African — continue to import 99% of its vaccine?”

We are likely to hear more about Mickey Mouse. Although the li’l guy created in “Steamboat Willie” enters the public domain in 2024, Walt Disney might argue that it created many versions of the mouse since its original incarnation. One can’t help but wonder though, what does Mickey’s copyright protect — society’s interests in encouraging artistic creation? Or Walt Disney’s profit?