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Commons: A Claim to Redesign the Governance of Knowledge and Technology

Updated: Mar 4, 2022

It has become more familiar in the last two years to hear about access to medicines - namely access to vaccines or expected drugs against COVID-19 - being questioned in terms of market alternatives and/or in terms of the corporate ownership and management of patent rights. In February 2021, The United Nations Educational, Scientific and Cultural Organization (UNESCO) called for “the COVID-19 vaccines be treated as a global public good to ensure they are made equitably available in all countries, and not only to those who bid the highest for these vaccines”. A month later, the leaders of several countries of the world and the Director General of the WHO called for nations to “work together towards a new international treaty for pandemic preparedness and response”, stating “immunization is a global public good and we will need to be able to develop, manufacture and deploy vaccines as quickly as possible”. In May 2021, the Biden administration announced its support for waiving intellectual property protections for COVID-19 vaccines, followed in turn by France (who initially objected) and other European countries as well. “We must obviously make this vaccine a global public good,” commented French President Macron, who stressed, however, that beyond the transfer of intellectual property "the transfer of technology and the ability to produce” is “key”, while the Secretary of State to the Ministry of Economy expresses concern about the disincentive for industry to invest in research against new variants and the risk of relocation (Vignal, 2021).


Although more visible today, the academic and political debate as well as the activism of NGOs around the economy (in the broad sense) of medicines are obviously not new. The "global public good" approach is not the only alternative being considered. This post briefly explores another approach, that of 'the commons'. It focuses on three points of the argument developed in support of the commons by Gaëlle Krikorian, who was Head of Policy at Doctors Without Borders/Médecins Sans Frontières (MSF) Access Campaign from 2018 to 2020, and is a sociologist and researcher specialising in intellectual property issues, particularly in the pharmaceutical arena (Krikorian, 2020; Mary, 2019). Her argument on the commons sheds light on this notion of global public good which is dear to current politicians. More interestingly, however, this approach to addressing access to medicine through the lens of the commons from the perspective of NGO advocacy, through the views of Gaëlle Krikorian and other analysts I mention here, brings an enriching perspectives for our reflection on Social Pharmaceutical Innovation (SPIN). MSF, and other NGOs or advocacy organizations such as Act Up, position themselves as actors equipped with legal knowledge concerning the regulation of health product distribution (coined by Gaëlle Krikorian, as knowledge activism), as a force for bringing forward proposals to make medicines available for neglected or orphan diseases.


Collective Governance of Health Products

The concept of global public goods opens a perspective on the right to health, linked to the notion of universal rights. In the political discourses mentioned above, it is envisaged as a key to making medicines free of property rights and thus accessible, or even cost-free, to the population. The main pitfall Gaëlle Krikorian highlights is that "its legal codification is, if not impossible, at least unenforceable: apart from the fact that these rules are particularly far from the reality of the prevailing political economy of pharmaceuticals, practices and political consensus, no institution has the appropriate jurisdiction and authority to enact and enforce them internationally." (Krikorian, 2020).


In contrast to the concept of public goods, she writes, the notion of the commons "involves a given community and territory, and is based on the production of a collectively elaborated governance charter". At stake is the elaboration of other forms of rights, which are not "property" rights but "collective use" rights on knowledge and technologies (Krikorian, 2020). Advocating the commons model to global public health actors, Doctors Without Borders/ MSF ultimately raises the issue of drug governance (Mary, 2019).


Making Access to Medicines an Issue that Integrates Issues From R&D to the Distribution of Medicines

This issue leads to the second point. The commons model substitutes the unilateral control of intellectual property holders for collective governance. This reflects the involvement of multiple actors in the development of health products, "from public health institutions, research, industry, health professionals, to NGOs, patients, foundations, etc." From a public health standpoint, the medical commons guarantee the continued existence of developed products as well as being incredibly useful for the development of new products. The alternative of the commons proposed by NGOs suggests that the issue of access to medicines integrates the issue of research and development of medicines (Krikorian, 2020). The Drugs and Neglected Diseases Initiative (DNDi) is one example. The DNDi, a nonprofit research and development organization established by MSF in the early 2000s, initiates and funds collaborative platforms “conceived as commons-based innovative entities” that belong not to DNDi but to the medical and scientific community working therein. DNDi's policy relies on the primacy of access to treatment, and, according to Coriat et al., its “commitment is to initiate, in a commons approach, affordable treatments which has given rise to an innovative intellectual property policy designed to make it possible”, whereby “different attributes of property rights are distributed and allocated to different types of partners”, including pharmaceutical companies (Coriat et al., 2019). Cassier (2017) highlights, through the example of the antimalarial drug ASAQ which Winthrop launched in 2007, several attributes of the commons, including that this drug is not protected by patents, that DNDi has granted a non-exclusive license to Sanofi for its technology, and that the drug's price is regulated according to an agreement with the company to supply the public markets (Sanofi sets a price aligned with the cost of production in one of the group's local factories). Further, DNDi monitors the medical effects of the drug as well as its' standardisation.


Preserving, Sharing, Partnering

The third point summarises the issues of defining collective-use rights and involving multiple actors in the process of development, production and distribution of medicines. As an alternative to the market management of resources, the commons involve a form of an exchange relationship, allowing for the sharing of resources and for partnerships that contribute to the preservation of the resources. This is true whether we are talking about water, medicines, software, or even health. "The logic of the commons," argues Gaëlle Krikorian (2017), "invites us to apprehend the resource from the relationship developed by the social groups that participate in its production and management." This is an insightful invitation as one considers the situation of the last two years regarding masks, tests and COVID-vaccines, or drugs for rare diseases.


 

References

J. V. Bainimarama, Prime Minister of Fiji, Prayut Chan-o-cha, Prime Minister of Thailand, António Luís Santos da Costa, Prime Minister of Portugal, Mario Draghi, Prime Minister of Italy, Klaus Iohannis, President of Romania, Boris Johnson, Prime Minister of the United Kingdom, Paul Kagame, President of Rwanda, Uhuru Kenyatta, President of Kenya, Emmanuel Macron, President of France, Angela Merkel, Chancellor of Germany, Charles Michel, President of the European Council, Kyriakos Mitsotakis, Prime Minister of Greece, Moon Jae-in, President of the Republic of Korea, Sebastián Piñera, President of Chile, Carlos Alvarado Quesada, President of Costa Rica, Edi Rama, Prime Minister of Albania, Cyril Ramaphosa, President of South Africa, Keith Rowley, Prime Minister of Trinidad and Tobago, Mark Rutte, Prime Minister of the Netherlands, Kais Saied, President of Tunisia, Macky Sall, President of Senegal, Pedro Sánchez, Prime Minister of Spain, Erna Solberg, Prime Miniser of Norway, Aleksandar Vučić, President of Serbia, Joko Widodo, President of Indonesia, Volodymyr Zelensky, President of Ukraine, Dr Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization. Op-ed "COVID-19 shows why united action is needed for more robust international health architecture". Posted on the official website of the President of France – Elysée on 30 March 2021. https://www.elysee.fr/en/emmanuel-macron/2021/03/30/covid-19-shows-why-united-action-is-needed-for-more-robust-international-health-architecture


Cassier Maurice (2017). Médicament et communs [Medicines and commons]. Dictionnaire des Biens Communs. Paris, PUF ⟨halshs-02023996⟩.

Coriat Benjamin, Abécassis Philippe, Alessandrini Jean-Francois, Coutinet Nathalie, Leyronas Stéphanie. (2019). Developing innovative drugs through the commons. Lessons from the DNDi experience. hal-03408089. https://hal.archives-ouvertes.fr/hal-03408089/document


Krikorian Gaëlle (2020). Pour une gouvernance collective des produits de santé [For a collective governance of health products]. Délibérée, 11, 81-86.


Krikorian Gaëlle (2017). La solidarité comme "commun" [Solidarity as "common"]. Plein droit, 115, 23-26.


Mary Catherine (1 June 2019). Gaëlle Krikorian, négociatrice sans concessions pour l'accès aux médicaments [Gaëlle Krikorian, uncompromising negotiator for access to medicines]. Le Monde.


UNESCO (24/02/2021). UNESCO calls for COVID-19 vaccines to be considered a global public good. https://en.unesco.org/news/unesco-calls-covid-19-vaccines-be-considered-global-public-good


Vignal François (6 May 2021). Levée des brevets sur les vaccins : Macron est “à la remorque des Etats-Unis. “[Waiving vaccine patents: Macron is "following in the footsteps of the United States"]. Public Sénat. https://www.publicsenat.fr/article/societe/levee-des-brevets-sur-les-vaccins-macron-est-a-la-remorque-des-etats-unis-188999


 

Written by: Florence Paterson

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