Australia has a solid practical legal response to moves in Europe to seize AstraZeneca vaccine factories, strip the company of its intellectual property rights and forbid supplies of the vaccine to Australia.
We should not panic at EU moves to strip AstraZeneca vaccine factories of their intellectual property rights because the Australian government has to the power to over ride any of Europe’s attempts to stop us having the vaccine.
Media are saying that the EU is threatening two things; to keep all vaccines for the European market but also to strip AstraZeneca vaccine factories of their intellectual property rights. The last threat is particularly serious as the EU may try to stop other countries manufacturing the vaccine or even perhaps try to seize the vaccines manufactured in other countries.
The key point to note is that whilst the EU tries to exert its power in the EU, if it tries to interfere here, our government has certain powers under the intellectual property acts to continue manufacture and rollout of the vaccine regardless of the EU attempting to “strip IP rights”.
In Australia certainly, there is an exception in the Patents Act for Crown use.
The Australian government can force whoever owns IP rights to grant the government a licence. The exception originated in war time so that in times of emergency, the Crown could exploit intellectual property – for a fair price. The exception is known as the “Crown Use” exception.
We warned last March of possible ‘dirty back room deals’ around the intellectual property rights of any Covid vaccine and international distribution priorities.
Aussies may be worried about the power of the EU to withhold the vaccines and it will be (presumably) able to do that under its own version of the “crown use” laws.
However Australia has the capacity to manufacture the AstraZeneca vaccine on its own soil and if the EU tries to interfere or stop Australia manufacturing the vaccine (perhaps tries to seize the vaccines under IP laws) the government can invoke the “Crown Use” exception and manufacture and distribute the vaccine.
Agreements are already in place to manufacture the AstraZeneca vaccine in Australia and we believe even if the EU does attempt to enforce IP rights, the crown use clause in our laws protects Australians.
There’s some uncertainty on whether a patent has yet been granted for the vaccine and if one is not yet granted then any EU restrictions cannot be enforced.
No matter what the EU does, technically the Crown could exploit a loop hole in Australian law to ensure it can manufacture and distribute any vaccine here.
Australia has secured 53.8 million doses of the AstraZeneca vaccine, and Italy has blocked the exports here to vaccinate its own population.
However, the majority of Australia’s AstraZeneca doses will be made here — with 50 million doses to be manufactured in Australia in monthly batches.
Australians should not panic at whatever happens in Europe to deny us the vaccine.
Under Australian law the Crown can exploit the Crown Use exception and force the patent holder to licence the patent to the Australian government.
Watch this space.
