Ruth Okediji

An op-ed by Ruth L. Okediji: On Wednesday May 5, the US moved to back a Covid-19 vaccine patent waiver that was being debated at the World Trade Organization (WTO). The proposal, first put forward by South Africa and India in October 2020, seeks to temporarily lift certain intellectual property rights that belong to pharmaceutical companies so that other nations can develop generic versions of the drugs. As awareness of vaccine inequality has grown, patents and other types of intellectual property have become central to how the world emerges from the pandemic. Ironically, the patent system was supposed to improve public welfare. Here's how the rationale goes: in return for disclosing her invention -- i.e. by seeking a patent -- an inventor would be able to, among other things, exclusively make, use, and sell that patented product for 20 years. This would -- as the US Constitution puts it -- "promote the progress of science and the useful arts" by incentivizing the creation and dissemination of lifesaving products. In practice however, the global patent system has enabled the creation of drugs that pharmaceutical companies can sell at high prices, to the patients who can afford them and largely for diseases prevalent in wealthy countries. Pharmaceutical companies argue that these high prices are necessary to recoup substantial research and development (R+D) expenditures, but patent rules also prevent poor countries from producing medicines locally to meet domestic needs.

African innovators have shown creativity and ingenuity in finding solutions to fight the COVID-19 pandemic, but face legal barriers to safeguarding their intellectual property. There have been 192 innovations directed at COVID-19 from Nigeria alone, as well as more than 90 from South Africa, it was revealed during a webinar hosted by Harvard Law School’s Center on the Legal Profession, and digital platform Africa.com. “One of the things COVID-19 has done is to underscore the importance of innovation in societies that have been viewed as lacking the intellectual capacity to deploy innovation,” said Professor Ruth L. Okediji of Harvard Law School. “Many innovations in Africa lack the protection necessary to make business models scalable and meaningful.” The webinar brought together top legal minds to discuss Law and crisis management: Working with lawyers in business, government and society to manage the challenges of COVID-19...David Wilkins, Faculty Director at the Center on the Legal Profession, started off with a brief presentation on the role of lawyers in society, reminding participants that one of the continent’s greatest freedom fighters, Nelson Mandela, had been a lawyer. “We tend to think of lawyers as technical appliers of the law…Lawyers must also be counsellors to help clients make decisions that are not only legal but also right…Lawyers must also be leaders who play a critical role in leading key organizations,” Wilkins said.

Imagine you have before you a blank sheet of paper. All existing copyright legislation, the whole history of property laws relating to creative works, has been completely erased. It’s up to you to rewrite it from scratch. Where would you start?...As Harvard law scholar Ruth Okediji put it in her brilliant keynote lecture on the festival’s Friday afternoon, “in important material respects, copyright law has written out creators.” Musicians, she claimed, were far more likely to find themselves the victims of copyright law than its beneficiaries – especially musicians from indigenous communities, or from the global south, or from impoverished communities in the global north. This is at least partly due to what Okediji called copyright’s “literary bias”. Copyright law was initially created to deal with written works and only somewhat uneasily transposed to the realm of music. Since then, the question of what is copyrightable in a work of music has tended to repeat this literary bias by favouring those elements that can easily be represented in writing – that is, for the most part, the melody and the harmony. The dots on the stave. But this is a prejudice catastrophically unfit for purpose when dealing with pop music. It has, in Okediji’s words, “created a hierarchy within creative circles” and “systematically underserved the vast majority of world cultures.”

Ruth Okediji, Smith professor of law, traces her enthusiasm for intellectual-property law to a childhood love of literature and storytelling. When she was seven, her family immigrated to New York City from Nigeria. “I had never heard the word ‘race’ and had never been described as a black person,” she recalls. “I just kept feeling this hostility in the private school that my parents sent me to. When I couldn’t make sense of it, I started going to the New York Public Library. The books raised me.”