A version of this brief was published on 13 June ’25 by the Graduate Institute as part of their ‘Governing Pandemic Snapshot’ series: https://www.governingpandemics.org/gp-snapshot
During the COVID-19 pandemic, the delayed access to vaccines in low- and middle-income countries revealed the lack of effective global measures for the equitable distribution of pandemic health products and for rapidly scaling up manufacturing of such products. In May 2020, well before the first vaccines were developed, and anticipating the need for production scale-up, the World Health Organization (WHO) established the COVID-19 Technology Access Pool (CTAP). However, as soon as the vaccines were developed, manufacturers turned their backs on CTAP. High-income nations became the first in line to procure the products, sometimes in quantities far exceeding their populations’ needs. Multinational pharmaceutical companies mainly denied requests to share intellectual property and manufacturing know-how from developing countries, frustrating efforts toward a more diverse and expanded production of COVID-19 vaccines. In an open letter to the G20 dated 29 October 2021, WHO Director-General Dr Tedros and other leaders pointed out that, for every 100 people in high-income countries, 133 doses of COVID-19 vaccine had been administered, while in low-income countries, only four doses per 100 people had been administered.
In October 2020, nine months into the pandemic, in an effort to prevent the kinds of conflicts over intellectual property (IP) of pandemic products as seen during the HIV pandemic, India and South Africa proposed at the World Trade Organization (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) a temporary waiver of certain provisions of the TRIPS Agreement for the duration of the pandemic. On 17 June 2022, after nearly two years of discussions, WTO Members adopted the Decision on the TRIPS Agreement, valid for five years, which primarily reiterated existing WTO Members’ rights to use compulsory licensing to enhance vaccine access. The Decision excluded COVID-19 therapeutics, for which the use of compulsory licensing would have been much better adapted. The Decision did not address the critical issue of access to know-how and technology transfer, which, in addition to access to IP, is essential for vaccine production. The decision to extend the Decision to therapeutics, foreseen within 6 months of the adoption of the Decision, was never taken.
It was therefore no surprise that technology transfer took centre stage at the WHO Pandemic Agreement negotiations, which started in February 2022. The 78th World Health Assembly adopted the Agreement in May 2025. During the negotiations, the issue of technology transfer quickly became contentious, with faultlines appearing between parties that insisted technology transfer should only ever take place on a voluntary basis and those that were seeking firmer commitments that manufacturing know-how would be made available to enable production of pandemic health products, including the ability to compel access to such know-how in the absence of voluntary arrangements.
In the final hours of the last round of negotiations in April 2025, the talks came close to collapsing when the European Union, spurred on by Germany, sought to define technology transfer as “voluntary and on mutually agreed terms”, leaving the decision of whether to share essential manufacturing information in the hands of the rights holders. This was unacceptable to developing countries, who were seeking stronger measures that would assure access to technologies and know-how, and because such framing would have curtailed existing flexibilities. For example, WTO law recognises members’ rights to take non-voluntary measures to gain access to technology, IP, and know-how, especially for public health. While a WHO agreement cannot alter WTO law, the political and practical consequences of defining technology transfer as something that can only be achieved on a voluntary basis and on mutually agreed terms would have meant a setback. In the end, a compromise was found, to delete the term “voluntary” and only refer to “as mutually agreed” where technology transfer was mentioned, which was formulated in footnote 8 as follows: “For the purposes of this agreement, “as mutually agreed” means willingly undertaken and on mutually agreed terms, without prejudice to the rights and obligations of the Parties under other international agreements.” Footnote 8 was subsequently inserted each time the text refers to the transfer of technology.
This compromise no longer holds the risk of a restrictive definition of technology transfer. It leaves existing rights under international law to compel access to IP and undisclosed know-how untouched. Voluntary sharing of technology and manufacturing can be very effective in expanding production capacity and contributes to pandemic preparedness and response. But if rights holders refuse to come forward on a voluntary basis, governments need to be able to take action to ensure access to pandemic technologies. It would have been counterproductive had the agreement curtailed the ability of such government regulation.
The main provisions related to technology transfer are contained in Article 11 of the Pandemic Agreement, titled “Transfer of technology and cooperation on related know-how for the production of pandemic-related health products”. Article 9, which covers research and development (R&D), also contains a provision to facilitate the sharing of technology. Article 9.5, for example, commits parties to develop policies with regard to publicly financed innovations to ensure access to such innovations, which may include licensing and access to technologies for R&D and local production. Because the term “access” to technologies is used here and not “transfer”, Article 9.5 remained free of the footnote. The Pathogen Access and Benefit Sharing (PABS) system, which will be finalised by the Intergovernmental Working Group and attached as an annex to the Agreement, will also include provisions for access to know-how and technology transfer.
Article 11.1 commits parties to promote the transfer of technology “as mutually agreed” and sharing of information needed for the production of pandemic-related health products. It encourages measures to make licences available for innovations in which governments own rights and measures to encourage private rights-holders to do the same. It further encourages such voluntary licensing at no or reasonable royalties and with a broad geographic scope, increasing transparency of the terms of license agreements, and transferring technology to regional or global technology transfer hubs or other mechanisms.
Efforts to include a provision for compelling cross-border access to trade secrets when necessary for manufacturing failed. This was particularly important for countries without a technological base and who are dependent on know-how developed elsewhere. Instead, Article 11.1 (f) solely encourages private rights-holders to share information related to production.
Article 11.3 is a barely recognisable reference to IP-waivers, which could for example be agreed upon at the WTO: committing parties to collaborate, where appropriate, “with regard to time-bound measures to which they have agreed within the framework of relevant international and regional organizations to which they are a party, to accelerate or scale up the manufacturing of pandemic-related health products…”
Article 11.4 further reaffirms parties’ rights to use to the full flexibilities contained in the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health. This refers, of course, primarily to the use of non-voluntary measures, such as compulsory licensing. In an acknowledgement that parties often experience political difficulties when exercising such rights, Article 11.4 includes the provision “The Parties shall respect the use of these flexibilities that is consistent with the TRIPS Agreement.” This became known as the ‘peace clause’.
Article 11.5 contains measures for strengthening and/or developing licensing mechanisms (presumably this refers to multilateral initiatives such as the Health Technology Access Pool, the successor to CTAP, and the Medicines Patent Pool (MPP), but these entities are not explicitly mentioned in the Agreement).
The last provision, Article 11.6, again in veiled terms, refers to existing flexibilities under WTO law and requires parties to “consider amending, as appropriate, its national and/or domestic legislation with a view to ensuring that it is able to implement this Article in a timely and effective manner.” This article finds its origin in the difficulty at the country level to make effective use of TRIPS flexibilities when easy-to-use domestic rules are lacking.
Article 11 touches upon crucial issues in relation to technology transfer, but provisions remain vague and fall short in creating new binding obligations for parties that will change the status quo. Further, many of the provisions containing actions are couched in caveats such as “as appropriate”, “in accordance with applicable law and policies” or “subject to available resources”. These words offer parties that are reluctant to take action an escape, and may hamper holding parties accountable.
But perhaps the most important achievement is the agreed establishment of a multilateral mechanism and process that will allow for regular interaction, collaboration and review of the actions needed in responding to pandemics.
Ellen ‘t Hoen, LLM PhD, is a lawyer and public health advocate with over 30 years of experience working on pharmaceutical and intellectual property policies.