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THE RACE TO THE COVID-19 VACCINE, AND WHAT SHOULD HAPPEN TO THE CHEATERS

By: Ben Peeler
In light of vaccine development following the outbreak of COVID-19, this blog discusses the several attempts that have been made by foreign nations to steal vaccine research and the manner in which the international community should deal with COVID-19 vaccine research theft.

Introduction

         On December 31, 2019, the World Health Organization (“WHO”) learned of a then-unidentified disease causing 44 cases of pneumonia in Wuhan City, Hubei Province of China.[i]  On January 12, 2020, this disease was revealed to be a novel strain of coronavirus known as “2019-novel coronavirus” (2019-nCoV) and later renamed “coronavirus disease 2019” (COVID-19).[ii]  As of August 8, 2020, seven months since COVID-19 was identified, there have been nearly 19.2 million cases and 716,075 deaths attributed to it globally.[iii]  Approximately 54% of global cases and 53% of global deaths are localized to the WHO Americas region.[iv]

         In addition to the catastrophic loss of life, the economic and social impacts of the virus have been enormous.  The United States’ Gross Domestic Product (“GDP”) fell at an inflation adjusted annual rate of 32.9% in the second quarter, representing the sharpest quarterly GDP decline in more than 70 years.[v]  Countries all over the world have instituted various restrictions on social gathering, ranging from total resident lockdown, to suspended elections, to mandatory mask mandates.[vi]  With so much at stake, the global race is on to find a vaccine that will prevent COVID-19.

         Immense resources are being poured into developing a COVID-19 vaccine.  For instance, the United States has pledged $1.2 billion to the pharmaceutical company AstraZenica in exchange for 300 million doses of vaccine.[vii]  However, the massive potential boon to whoever develops a vaccine first also creates massive incentives for others to “cheat” by stealing research data, a form of trade secret.  Because the stakes are so high, entire nations are desperate to acquire a COVID-19 vaccine.  Some are using any means necessary to do so.  

         Both Russia and China have been implicated in attempts to steal vaccine research data from laboratories around the world.[viii]  Two Chinese hackers have already been indicted by the U.S. Justice Department for hacking vaccine research development labs on behalf of the Chinese government.[ix] Further, the current global pandemic is not the first time that the United States has accused Russia and China of industrial and economic intellectual property theft.[x] I will argue that the international community should join the U.S. in aggressively enforcing vaccine research labs’ Intellectual Property (“IP”) rights in order to ensure a vaccine to the current worldwide pandemic is created as soon as possible.

State-Sanctioned Economic Espionage Generally

         The United States has identified the Chinese and Russian governments as principal agents of appropriating American IP.[xi]  Furthermore, estimates suggest that America loses up to $400 billion each year due to international IP theft.[xii]  IP thefts made on behalf of a foreign state are known as state-sanctioned economic espionage.[xiii]  There are two primary means of economic espionage used by Russia and China: theft by foreign investment and theft by cyberattack.[xiv]  Historically, the United States’ response to state-sanctioned economic espionage has ranged from public condemnation of the foreign county, to educating private entities on ways to protect their IP, to criminal charges levied against the individually identified thieves.[xv]  Recently, the Trump administration has imposed tariffs on China in response to China’s involvement in international IP theft.[xvi]  Additionally, a bipartisan bill has recently been introduced in the Senate to further crack down on economic espionage, particularly from China.[xvii]

Why COVID-19 Vaccine Research Theft Should be Aggressively Punished

         Finding a vaccine to COVID-19 as quickly as possible is the top priority of the international community.  The hacking attempts by Russia and China to steal vaccine research data represent a significant threat to vaccine development in two major ways. Firstly, cyberattacks pose a serious risk to the integrity of research data because the methods hackers use to gain access to said data can often damage the underlying data structure in the process.[xviii]  Secondly, without a strong deterrence against economic espionage, vaccine development labs will have to divert resources away from research and into security, further delaying an eventual vaccine through an otherwise inefficient allocation of resources.  The risk of a developmental setback posed by damage to data structures or inefficient allocation of limited resources to prevent a cyberattack is too high for anything less than widescale international reprisal to deter any would-be state-sanctioned hackers.  Individual criminal charges have proven to be “dismal” in curbing economic espionage.[xix]  

         Effectively curbing economic espionage into COVID-19 vaccine development requires a coordinated effort by the international community to lay economic and political sanctions at the feet of any nation that seeks to cheat and violate IP rights of those working to bring an end to the global pandemic.  While it is true that innocent citizens of these countries will be harmed by sanctions, a credible deterrent is necessary to safeguard the public health of the whole world’s population. Such a response would not be politically convenient, or simple to implement, but we must use deterrent powerful enough to stop any further endangerment of delaying a COVID-19 vaccine from being developed and deployed.  


[i] World Health Organization, Novel Coronavirus (2019-nCoV) SITUATION REPORT – 1 1 (2020).

[ii] Id.; World Health Organization, Novel Coronavirus (2019-nCoV) Situation Report – 22 1 (2020).

[iii] World Health Organization, Coronavirus disease (COVID-19) Situation Report – 201 1 (2020).

[iv] Id.

[v] Harriet Torry, U.S. Economy Contracted at Record Rate Last Quarter; Jobless Claims Rise to 1.43 Million, Wall St. J. (July 30, 2020), https://www.wsj.com/articles/us-economy-gdp-report-second-quarter-coronavirus-11596061406.

[vi] Juliana Kaplan et al., Our ongoing list of how countries are reopening, and which ones remain under lockdown, Business Insider (July 29, 2020, 4:06 PM), https://www.businessinsider.com/countries-on-lockdown-coronavirus-italy-2020-3.

[vii] David D. Kirkpatrick, $1.2 Billion From U.S. to Drugmaker to Pursue Coronavirus Vaccine, N.Y. Times (June 9, 2020), https://www.nytimes.com/2020/05/21/health/coronavirus-vaccine-astrazeneca.html.

[viii] See Julian E. Barnes, U.S. Accuses Hackers of Trying to Steal Coronavirus Vaccine Data for China, N.Y. Times (July 21, 2020), https://www.nytimes.com/2020/07/21/us/politics/china-hacking-coronavirus-vaccine.html; see also Julian E. Barnes, Russia Is Trying to Steal Virus Vaccine Data, Western Nations Say, N.Y. Times (July 16, 2020), https://www.nytimes.com/2020/07/16/us/politics/vaccine-hacking-russia.html?action=click&module=RelatedLinks&pgtype=Article.

[ix] Supra note viii.

[x] Garrett Hinck & Tim Mauer, Persistent Enforcement: Criminal Charges as A Response to Nation-State Malicious Cyber Activity, 10 J. Nat’l Security L. & Pol’y 525, 526 (2020).

[xi] Id.

[xii] Melanie Reid, A Comparative Approach to Economic Espionage: Is Any Nation Effectively Dealing with This Global Threat?, 70 U. Miami L. Rev. 757, 761 (2016).

[xiii] Id. at 760.

[xiv] Jyh-An Lee, Shifting IP Battlegrounds in the U.S.-China Trade War, 43 Colum. J.L. & Arts. 147, 157, 161 (2020).

[xv] See supra note xii, at 766; see also Catherine Lotrionte, Countering State-Sponsored Cyber Economic Espionage Under International Law, 40 N.C. J. Int’l L. & Com. Reg. 443, 451-52 (2014).

[xvi] Shayerah Ilias Akhtar & Ian F. Fergusson, Cong. Research Serv., IF10033, Intellectual Property Rights (IPR) And International Trade 2 (2019).

[xvii] Bipartisan Safeguarding American Innovation Act Would Crack Down on China Theft of U.S. IP, IP Watchdog (June 19, 2020), https://www.ipwatchdog.com/2020/06/19/bipartisan-safeguarding-american-innovation-act-crack-china-ip-theft/id=122673/ (for example, the proposed “Safeguarding American Innovation Act” provides for fining individuals who fail to disclose foreign monetary assistance on federal grant applications and lowers the foreign gift reporting threshold for schools and universities from $250,000 to $50,000, among other provisions).

[xviii] See supra note viii.

[xix] Supra note xii at 772.

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