Pandemic virus as property

This site has a Creative Commons license on it. Essentially this means anyone can copy, distribute or transmit my blog posts for whatever purpose they want -- even commercial purposes. The only restriction is that this unrestrictive license travels with the post. If you use something from us you must permit anyone else to take the same post from your site without asking permission; and to attribute it to us at Effect Measure (i.e., give us credit, ideally including a link back to this blog).

We think this is a good model for influenza viruses, too. Because without it we are headed for trouble. Really, really big trouble:

The continuing debate over developing countries' ability to afford pandemic-influenza vaccines has produced a disturbing complication: the possibility that Indonesia and other countries affected by H5N1 avian flu will assert legal ownership of the viral isolates on which the vaccines would be based.

The prospect of a territorial or intellectual-property claim on the isolates--which are used both to track the movement and evolution of the virus and to develop vaccines against it--is roiling senior members of the international flu community, who are meeting in Toronto this week at the International Conference on Options for the Control of Influenza. About 1,400 experts from 65 countries are attending.

If such a claim were successful--which legal experts say is far from guaranteed--it could both disrupt the fragile and relatively low-profit flu vaccine system and potentially threaten the legal standing of other biological products as well. (Maryn McKenna in CIDRAP news)

What began as a claim about equity for the developing world (see here, here, here, here, here, here, here, here, here) took a more ominous turn at last month's World Health Assembly, WHO's governing body:

The fear of a legal claim that could disrupt flu surveillance and vaccine manufacturing is the latest chapter in a dispute that began late last year when the government of Indonesia withdrew from the 55-year-old system by which flu viruses are shared around the world.

Under that system, which was developed for tracking and controlling seasonal flu and has now been extended to flu strains that could spark a pandemic, viruses are isolated in a country and analyzed to increasing levels of sophistication by a national lab, regional lab, and WHO Influenza Collaborating Centers in Tokyo, Melbourne, London, and the US Centers for Disease Control and Prevention in Atlanta. Gene sequences from the analyses are used to identify emerging strains of flu and then passed free of charge to pharmaceutical companies to be commercialized as vaccines.

Developing countries paid little heed to the system for most of its existence because they do not manufacture vaccine and typically do not vaccinate their populations against seasonal flu. However, the Southeast Asian countries where H5N1 is concentrated have a strong interest in protecting their populations against a potential pandemic--but they would be unable to afford the pandemic-flu vaccines that Northern Hemisphere manufacturers might produce.

Indonesia ceased sending isolates to the WHO at the end of 2006 as a protest, triggering intensive international negotiations. Its government and several other Southeast Asian countries, including Thailand, lodged their objections in front of the WHO's executive board in January, casting the impasse as an issue of human rights and equity.

But at last month's World Health Assembly, the voting gathering of the WHO's 193 member states, the countries restated their case as an issue of sovereignty. A group of more than 20 countries asserted that they retain rights to isolates from their territories under the 1991 International Convention on Biological Diversity, which protects unique genetic resources.

So now the lawyers are arguing whether the virus is really property or not, and if it is, whether it is intellectual property or real property. Etc. I don't care if a pandemic flu strain is intellectual property or real property or not property at all because withholding it or restricting access is or profiting inordinately by monopolizing it are all beyond the pale when the health of the world's population is involved. Influenza viruses should have the equivalent of Creative Commons licenses. No one needs permission to "use" them to make a vaccine or do research. They should acknowledge the source and provide them to anyone else who asks. Even a competitor. Or simply get them from a common source, like WHO. If that sounds familiar it is because the current WHO system is essentially a Creative Commons license, without using that name.

The virus is a part of the natural world. It is part of the Global Commons for that reason. Now if we could have some Creativity to go with it, maybe we would get somewhere.

More like this

This was an incident waiting to happen. Indonesia has signed a preliminary agreement with vaccine maker Baxter international an arrangement to supply with with viral vaccine seed in exchange for an unknown compensation. It is unclear whether the arrangement is exclusive to Baxter or not (see today'…
When Indonesia withdrew from the longstanding system whereby countries shared influenza virus with WHO there was widespread consternation in the public health community. The sharing system has been used for many years to determine the candidate strains for the following year's vaccine. The regular…
The first day of the scheduled four day showdown in Geneva over sharing bird flu virus isolates is now over. What seems to have been accomplished is statements of opening positions. How moveable everyone is remains to be seen, as does whether there is an Alexander the Great around to cut the…
If a rogue H5N1 virus easiy tansmissible between people is to develop, the most plausible spot for it to happen is Indonesia, the world's fourth most populous with a vast reservoir of infected poultry (and who knows what else) and more human cases (113) and more deaths (91) than any other country.…

If they own the virus, then they have to pay for
all the economic damages and suffering and loss of life it's causing.

By crfullmoon (not verified) on 22 Jun 2007 #permalink

It sounds to me that viruses are about to gain legal rights in this country and the world. As CRF posits, they should be responsible for the effects of it if their bug gets loose. Patenting a life form? Whether you believe in God or not, this is where science and religion will meet and call a big BS on that.

What if we produced something that killed their newly righted life form? Could we be held liable too? Loss of revenue. They really need a reality check on this one.

By M. Randolph Kruger (not verified) on 22 Jun 2007 #permalink

The idea that if your property causes damage you are liable is a question of law, not logic. It isn't clear whether this would the case. Meanwhile, if you have possession of your property you can control who uses it. This is a legal can of worms, a clear signal that there is something drastically wrong with the underlying concept.

Well, crfullmoon, if they're Monsanto they probably sue the sick for not paying royalties (as Monsanto goes after farmers who's fields grow wind-sown Monsanto crops even though the farmer doesn't want them).

This is a great time for the legal community to reconsider the idiocy that passes as IP law.

The virus is a part of the natural world. It is part of the Global Commons for that reason.

I share your concern about access to pandemic strains, but the above argument seems problematic to me.

Most people agree that a country has legitimate sovereignty over all sorts of natural things within its borders - from mineral deposits to oil reserves to endangered plants and animals. If virus strains are different (and I agree they are), there needs to be a better way to distinguish them in international law.

qetzal: You make a good point. The reason I used the phrase "a pandemic virus" earlier in the post was to avoid this kind of complication but I slipped up at the end.

I think there is a pretty clear remedy for this, if a nation feels it has sufficiently important reasons to stop cooperating with the Influenza collaboration, then other nations would likely feel the need to quarantine passengers and cargo originating in those nations for sufficiently long to ensure that there was no influenza present. Two weeks of quarantine is likely enough.

If passengers or cargo passing through a country had to wait 2 weeks in isolation because of foolishness on the part of government officials, I think those officials would quickly change their behavior.

daedulus: Yes, this could happen, although it would be a violation of international law (something the US doesn't care about anyway). However it is an illustration of how things can come unglued over something like this. So the country that is affected (because they started to withhold virus because a company in yet another country wouldn't sell them cheaper vaccine made form seed stock they provided for free because still another country, etc., etc.) takes yet another action in retaliation which causes another country to . . . You get the idea. Once you start down this road it doesn't lead anywhere good.

The gradual creep of IP rights laws in the US to cover natural systems - which should not be anyones property - has lead to a situation where Indonesia feels emboldened to try and extend the principle to their benefit. They are wrong but the line in the sand had already been moved to such a ridiculous position this is only marginally more farcical.

The source article from CIDRAP grossly mischaracterizes the situation.

Wake up folks! The people laying intellectual property claims to bird flu are a number of researchers and companies, almost exclusively American. It's not the Indonesians. Go vent your anti-IPR energy on an appropriate target, such as Mt. Sinai Medical Center, the University of Wisconsin, MedImmune, St. Jude's (Memphis), or the University of Pittsburgh.

Somewhat counterintuitively - but not if you really study the issues - the position of Indonesia and allies is aimed at preventing the growth of intellectual property over bird flu and facilitating access to technologies that can be used to increase availability of flu vaccine in the developing world.

AFAIK, CIDRAP covered the WHA (in Geneva) from a desk in ... Minneapolis. Not the best vantage point.