Vaccine Patent Waivers: A Major Step Towards Ending the Covid-19 Pandemic?

By: Xiang Li

It has been two years now since the World Health Organization (WHO) declared the existence of the COVID-19 global pandemic on March 11, 2020. Through the concerted efforts of healthcare systems, vaccine manufacturers, governments, and members of the public, the world finally has the upper hand in the uphill battle against the COVID-19 pandemic. However, given how infectious the virus is and the speed at which it evolves to escape sufficient human immune response, it is not yet the time to let our guard down and it is critical to redouble efforts to increase global vaccination rates

Importantly, the inequality in vaccination rates seen between low-income countries and the rest of the world remains a prominent problem. As of March 31, 2022, 79.0% of the populations of “high-income” countries have received at least one dose of the COVID-19 vaccine, and so have 81.2% of the populations of upper middle income countries. Approximately 59.2% of the populations of lower middle income countries have received at least one dose. On the other end of the spectrum, only 14.5% of the population of low-income countries have received at least one dose of the vaccine. The disparity is largely caused by the unaffordability of vaccines to people in low-income countries.

To solve this disparity, the national governments of India and South Africa submitted on October 2, 2020 a communication (IP/C/W/669) to the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Council of the WTO, proposing that the obligation of TRIPS members to recognize and enforce patent rights should be temporarily waived with respect to patents relating to COVID-19 vaccines, medicines, and equipment necessary for treating and preventing COVID-19. The patent waiver as proposed is not mandatory, it simply allows TRIPS members to waive patent protection in their own countries, if they choose to do so.

The legal basis of adopting a patent waiver lies in Article IX.3 of the Marrakesh Agreement, which establishes the WTO. Specifically, Article IX.3 provides that the Ministerial Conference of the WTO, with the support of three-quarters of WTO members, may waive an obligation imposed by the TRIPS Agreement.

The waiver proposal has gained support from more than 100 low-income countries, but has encountered obstructions from many high-income countries, including European Union countries, the United Kingdom, and Switzerland. On May 5, 2021, the Biden administration announced support for a patent waiver; however, it was not until recently that major parties of the WTO made progress towards the negotiation of the terms of the waiver. 

Specifically, a news report published on March 16, 2022 indicated that the European Union, the United States, India and South Africa have reached a compromise on the terms of the waiver. Notably, only countries that have exported less than 10% of the total global exports of COVID-19 vaccine doses in 2021 are entitled to invoke the waiver to use the patented materials. These criteria effectively exclude the European Union, China, and the United States from invoking the waiver, since these countries account for 39.3%, 33.7%, and 14.2% of global vaccine exports respectively. 

The United States could have taken a stronger stance on waiving intellectual property protections, but it has not — possibly because a waiver suspending domestic patent protection might violate the Takings Clause of the Fifth Amendment of the United States Constitution. The Supreme Court of the United States has recognized that patent rights are subject to the protection of the Takings Clause, just as property rights in a piece of land. At the same time, the United States has a strong interest in preventing China from obtaining the right to invoke the patent waiver, to make sure China cannot use United States’ proprietary technologies to gain an advantage in vaccine development and other related biotechnology.

This recent compromise on the terms of the waiver might be a significant step towards passing the waiver at the WTO, since the European Union (composed of 28 countries, each having a vote) has been the strongest opponent of the waiver, as indicated by its statements made at several WTO meetings. Many scholars and policy makers believe that passing the waiver is a necessary step to provide equal and affordable access to vaccines to people in low-income countries. If the entire world community is vaccinated before the coronavirus can evolve into other highly contagious and potentially even more deadly variants, the world may be able to finally declare victory over the pandemic.

Your Employer Can Monitor You While You Work From Home—Should They?

By: Joshua Waugh

Since “pandemic life” began, as many as 40% of American workers have worked from home. If you’ve been lucky enough to trade the crowded bus or the gridlocked highway for the shorter bedroom-to-laptop commute, chances are you’ve wondered just how closely your employer is watching you. The truth is that telework, for all its benefits, also has a major downside: near limitless opportunity for high-tech surveillance. And while it is clear that employers have the legal capability and the technology to monitor their employees, it’s less clear that employee surveillance is actually a good idea at all.

Can my employer really monitor me?

It is no secret that American privacy and technology laws are often lacking. At the federal level, the primary law dealing with electronic privacy is the Electronic Communications Privacy Act (ECPA), which was passed in 1986. The law is so old that Title I of the Act only contemplates a third party’s “interception” of a message sent by “wire, oral, or electronic communication”; the law doesn’t address the possibility of accessing stored communications, such as email, post-transmission.

Furthermore, Title I of the ECPA has been interpreted to include a carveout specifically allowing employers to monitor employees as long as the employer can show a legitimate business purpose. The ECPA also permits employers to electronically surveil employees upon their consent, which, given often imbalanced employee-employer power dynamics, is not great for the ordinary employee.

Title II of the ECPA, or the Stored Communications Act (SCA), provides more protection to employees, though the law is still just as dated as Title I. Under the SCA it is fairly well established that your employer can’t log in to your personal email without your permission. So rest assured, your employer cannot see the thousands of unread advertising emails in your inbox unless you give them access.

All of that said, there is not much legislation on electronic privacy at the federal level. That may seem surprising considering we’ve seen privacy controversy after privacy controversy from practically every big tech company in recent years, but electronic privacy regulation seems to be generally left to the states. The end result is that only Californians (and to a lesser extent Coloradans and Virginians) enjoy broad statutory protections against electronic employer surveillance. In most of the other states, as long as you are using an employer’s device or network, your employer may surveil you as much as they’d like. And surveillance software is readily available, including keyloggers that record every keystroke you make, activity monitors, and even software that records every website or app you access on the device. In fact, if your workplace is using the Microsoft Office 365 Suite, your employer is already able to monitor and analyze your work activity.

Where do we go from here?

If you’re concerned about your general lack of privacy rights living in America, you are not alone. Researchers have published studies showing that extensive employer surveillance can breed distrust among employees and such surveillance can be a significant hindrance on worker productivity and other positive performance outcomes. The feelings of distrust are even stronger when employees discover that they were being surveilled without their knowledge.

Despite evidence suggesting employee surveillance may have negative effects, surveys show that 62% of executives planned to use monitoring software in 2019, and that number is certain to have grown during the pandemic work-from-home era. Meanwhile, we’re also in the midst of a radical transformation in the labor force—the U.S. Bureau of Labor Statistics reported that 2.9% of the entire U.S. workforce, 4.3 million people, quit their jobs in August 2021. By all appearances, the Great Resignation is accelerating as 4.4 million workers went on to quit during September 2021, topping August’s record numbers. At a time when people are rethinking their relationship with work, struggling with burnout, and dealing with burdensome household issues such as child- and elder-care, employers should spend less time secretly surveilling their employees, and instead put effort into employee engagement. Essentially the opposite of paranoid surveillance, companies should engage with their workers by providing flexibility and building trust. Employee engagement is more likely to boost productivity than surveilling, and more importantly, in today’s climate, has been shown to increase employee retention. Ultimately, under current U.S. law, your employer can surveil you to its heart’s content in most states—but you can also resign if you feel your privacy rights have not been respected. As more and more in the labor force decide to do so, we’ll just have to wait and see how legislators respond.