Socially responsible shareholders are shaping corporate behaviours and access to COVID-19 health technologies through the uses and licensing of patent rights, writes Prof Aisling McMahon & Dr Edana Richardson of MU's School of  Law and Criminology.
Global equitable access to health technologies is vital to bringing COVID-19 and future pandemics under control. Patents – a type of intellectual property right that allow rightsholders to control how a patented technology is used for the duration of the patent which is generally 20 years – play a key role in how such technologies are accessed and used downstream and by whom. This can have significant implications for access and delivery of health care.  As many contemporary rightsholders in the healthcare space are corporate entities, the role of corporates and their shareholders in how such patented technologies are licensed and used is a key factor that can shape access to health technologies.

Bringing together their expertise in patent law and company law respectively, Professor Aisling McMahon and Dr Edana Richardson recently published a paper in Legal Studies that specifically examines the drivers steering companies’ behaviour over uses of patents over health technologies, taking COVID-19 as a case study. In this context, their research highlighted that traditionally the main driver of corporate behaviour within company law has been a focus on prioritising shareholders' short-term profits. Indeed, many corporate rightsholders adopted a protectionist approach to patents over COVID-19 health-technologies, even during COVID-19. Thus, despite calls for rightsholders to share intellectual property rights over such COVID-19 health technologies, including via the COVID-19 Technology Access Pool or (C-TAP) to increase global access to such technologies, such calls attracted limited support from COVID-19 vaccine rightsholders.

However, Professor McMahon and Dr Richardson’s research argues that one avenue which has potential to generate change in this context, and one that requires greater scrutiny, is the role of shareholders in overseeing how the companies they invest in use intellectual property rights over health-technologies that those companies may hold. Recently there has been an increase in these ‘engaged shareholder’ activities with shareholders petitioning companies to adopt more socially responsible corporate behaviour in the health context. These have included shareholders petitioning companies to license or use intellectual property rights over health-technologies in a manner that more clearly aligns with the broader public interests at stake, including in terms of access to healthcare. For instance, shareholder resolutions were introduced by Oxfam America in November 2021 calling on Pfizer and Moderna to commission reports on the feasibility of transferring intellectual property and know-how to enable production of COVID-19 vaccines in low-and-middle income countries.

Professor McMahon and Dr Richardson’s research goes on to argue that the public can and should seek to use their voices as shareholders to collectively leverage their power to influence how companies holding intellectual property rights over health-technologies are using these rights and to petition companies to ensure such rights are used in a way which does not hamper achieving global equitable access to such health-technologies. To do so, shareholders should start by questioning how their money is invested in order to understand what companies do with those investments. They should then use their voice to encourage and demand that corporate actions and decision-making is conducted in a way that enables greater access to health-technologies for (and beyond) COVID-19.  

Professor Aisling McMahon is a Professor of law in the School of Law and Criminology, Maynooth University. Her research focuses primarily on patent law and health law. She teaches modules on patent law and health law in Maynooth University, and has published widely in both fields. In 2022, Prof McMahon was awarded and ERC Starting grant for her project PatentsInHumans. This project will examine the role of bioethics in the patenting and licensing of technologies related to the human body.
Dr Edana Richardson is an Assistant Professor of law in the School of Law and Criminology, Maynooth University. Her research includes sustainable finance and capital markets. She teaches Company Law, Islamic Finance Law, Capital Markets Law and Mooting at Maynooth University