Compulsory Licence a Myth or Reality; Analysis through Experiences of India and Sri Lanka during the COVID-19 Pandemic

Abstract

The Trade Related Aspects of Intellectual Property Rights (TRIPS) provides compulsory license as one of the exceptions for patented pharmaceuticals. The issue is whether compulsory license is an effective solution for low- and middle-income countries (LMICs) in responding to a global health pandemic like COVID-19 since all countries are not homogeneous. Most of the LMICs are countries that have low or no manufacturing capacities. Further, due to fear of granting a compulsory license, most of the pharmaceutical products have not been patented in LMICs. Hence, when there are no operating patents in the own jurisdiction of LMICs, they are unable to proceed with generic drug productions by using a compulsory license. This doctrinal research reveals that the existing social economic legal and political disparities of LMICs have exaggerated the inability of realising compulsory license as an effective solution during the COVID-19 pandemic. Therefore, the global community is currently considering several alternatives like COVID-19 Technology Access Pool (C-TAP), and TRIPS waiver proposals to remove barriers associated with LMICs in realising compulsory license in midst of a global health pandemic. Global initiatives like C-TAP and TRIPS waiver proposals can be appreciated as timely efforts for reducing disparities in realisation of compulsory license by LMICs in responding global health pandemic of COVID-19.