Equity in rhetoric and (in)action: a thematic analysis of Canada’s approach to intellectual property rights in pandemics

Abstract

The Canadian federal government has consistently emphasized its commitment to global health equity. However, during the COVID-19 pandemic and its aftermath, Canada repeatedly resisted measures designed to promote equitable and timely global access to medicines through intellectual property (IP) sharing. This research study employs a qualitative, document-based thematic analysis to examine how Canada’s rhetorical commitments to equity intersected with its policy actions across three key cases: Canada’s Patent Act flexibilities surrounding the COVID-19 World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Waiver; Bolivia and Biolyse’s efforts to navigate Canada’s Access to Medicines Regime and the World Health Assembly’s intergovernmental negotiating body’s efforts to draft a treaty for pandemic prevention, preparedness and response. Across these cases, we find that Canadian representatives strategically advanced a narrow conception of equity centred on inclusion and gender, while sidelining intellectual property reform and the structural conditions of access. We conclude by outlining three policy recommendations for Canada to better align its commitment to equity with action on encouraging access to life-saving medicines.

SUMMARY BOX.

• Canada consistently framed its COVID-19 pandemic response in terms related to equity, yet opposed or deferred intellectual property (IP) reforms that would have expanded global access to medicines.

• Across the negotiations on the Trade-Related Aspects of Intellectual Property Rights waiver, the Canadian Access to Medicines Regime (CAMR), and the Pandemic Agreement, Canada demonstrated a pattern of using equity-focused rhetoric while resisting IP measures to promote global health equity.

• This disjuncture between rhetoric and action highlights how “equity” was strategically operationalised narrowly - centred on inclusion and gender - while neglecting the legal and economic conditions that determine timely access to life-saving technologies.

• Reforms to streamline CAMR, support IP waivers during public health emergencies and enhance transparency, and conditions on government-funded research are critical for aligning Canada’s policies with its equity commitments.

• A more coherent approach to IP governance would enable Canada to balance innovation incentives with equitable access to essential medicines.

Introduction

Since the COVID-19 pandemic began, the Canadian government has repeatedly committed to ‘support collective efforts to improve equitable access to COVID-19 vaccines, therapeutics and diagnostics’.¹ At the outset of the pandemic in 2020, Dr Theresa Tam, Chief Public Health Officer of Canada, proclaimed this sentiment clearly:

The COVID-19 pandemic has jolted our collective consciousness into recognizing that equity is vital for ensuring health security. This means incorporating a health equity approach to pandemic preparedness, response, and recovery…The bottom line: no one is protected until everyone is protected.²

Canada’s emphasis on the importance of equity has permeated public statements on the pandemic from Health Canada, the Public Health Agency of Canada and the governing Liberal Party. This framing aligns with Canada’s broader foreign and domestic health policy frameworks, including its implementation of the Gender-Based Analysis Plus action plan³ and Canada’s Feminist International Assistance Policy,⁴ each of which emphasise support for marginalised groups amidst the government’s broader vision of an equitable pandemic response.³

Despite these public commitments, Canada has consistently resisted one of the strongest measures for promoting equitable and timely access during pandemics: intellectual property (IP) sharing. While many countries in the Global North resisted IP sharing during and since the COVID-19 pandemic, Canada’s resistance is particularly notable because it has relied on the rhetoric of equity to conceal its active opposition to the temporary loosening of IP regulations. Canada has thus pursued an inherently contradictory agenda: projecting an image of supporting global health equity while blocking the effective and practical implementation of existing IP flexibilities during and after a global health crisis.

Comparative studies have previously illustrated how policy and government responses to the COVID-19 pandemic varied across national contexts, shaped by differences in political structures, health systems and technological capacity.^{5 6} These differences impacted vaccine access and rollout, but the specific political rhetoric around equity, especially Canada’s, calls for closer scrutiny. This study addresses that gap by critically analysing how Canada’s rhetoric on equity contrasts with its opposition to IP-sharing measures that could have advanced equitable access.

In October 2022, a parliamentary committee report on COVID-19 global vaccine equity recommended that Canada ‘ensure that its agreements to provide research and development funding include clauses that allow IP resulting from that funding—including vaccines, therapeutics and diagnostics—to be easily licensed to manufacturers serving low and middle-income countries’.⁷ Despite this clear recommendation, the Canadian government has consistently used equity as a rhetorical tool to obscure its resistance to IP sharing. In light of this clear recommendation, this paper examines how the Canadian government’s public rhetoric on equity related to its policy decisions on IP sharing during the pandemic. In the following sections, we analyse three policy cases during and since the COVID-19 pandemic in which Canada has simultaneously employed the rhetoric of equity while fighting IP sharing measures. We conclude with three pragmatic and actionable policy recommendations for Canada to better align its commitment to equity with encouraging access to life-saving medicines.

Methods

This study employed a qualitative, document-based thematic analysis to examine how Canada’s rhetorical commitments to equity intersected with its policy decisions on IP sharing during global health emergencies. The methods for this analysis involved a comprehensive qualitative review of Canadian policy actions and rhetoric concerning equitable access to COVID-19 vaccines, therapeutics and diagnostics. A wide range of primary and secondary sources, including official government statements, legislative records, international negotiation transcripts and civil society reports, were first identified through targeted keyword searches of public databases and institutional websites, including Global Affairs Canada, Health Canada, the World Trade Organization (WTO) and WHO. Searches used terms such as “TRIPS waiver,” “Canada vaccine equity,” “CAMR” and “pandemic treaty” and were supplemented by manual retrieval of relevant documents cited in parliamentary reports, media coverage and advocacy briefs in order to ensure comprehensive coverage of Canada’s policy actions and public messaging during the pandemic.

Three key policy cases were then selected for detailed analysis based on their relevance to Canada’s stated equity commitments and actions. We selected these cases through purposive sampling based on their salience in international policy debates and the availability of public documentation. They included Canada’s position during the Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver negotiations at the WTO, the attempt by Bolivia and Biolyse Pharma to secure compulsory licensing under Canada’s Access to Medicines Regime (CAMR), and Canada’s contributions to the Intergovernmental Negotiating Body (INB) discussions on a new international instrument for pandemic preparedness and response. These cases represent pivotal moments in which Canada’s rhetoric on equity was tested against its practical policy actions.

To assemble the dataset for analysis, we conducted structured and purposive searches across a range of publicly available repositories, including federal government websites (eg, Global Affairs Canada, Health Canada, Parliament of Canada), international organisations (eg, WTO, WHO) and civil society organisations (eg, Médecins Sans Frontières, Canadian HIV/AIDS Legal Network). We used a combination of keyword searches (eg, “TRIPS waiver Canada,” “CAMR,” “equity,” “Biolyse”) and citation tracking to identify relevant documents. These included official statements, negotiation records, legislative texts, committee reports, non-governmental organisation (NGO) briefs, academic articles and media coverage from major outlets (eg, Globe and Mail). We prioritised documents that directly addressed Canada’s policy stance, legal mechanisms or rhetorical framing around equity and IP sharing during COVID-19.

Data analysis

Inductive thematic analysis was conducted on policy documents, public statements and relevant international negotiations records to explore the alignment between Canada’s equity framing and its policy decisions regarding IP sharing.⁸ These include official statements from Canadian government entities such as Health Canada, the Public Health Agency of Canada and the Chief Public Health Officer. Legislative documents, including Bill C-13 and amendments to the Patent Act, were reviewed alongside parliamentary committee reports addressing IP and global vaccine equity. Additionally, records from WTO and WHO meetings, particularly concerning TRIPS flexibilities and COVID-19-related negotiations, were analysed.

The first author and the second author equally analysed all data in this study. Data were extracted from publicly available governmental and international organisation records and imported into a word document for initial review. Throughout the analysis, findings were discussed with the research team to ensure rigour and validity. The two researchers independently coded and reviewed the materials in a shared document, using iterative inductive thematic analysis to identify contradictions between equity rhetoric and policy actions. Codes and themes were iteratively reviewed to ensure robustness and alignment with the study objectives. Finally, the findings from this analysis informed the development of actionable policy recommendations aimed at addressing the gaps and contradictions in Canada’s approach.

Results

Patent Act flexibilities and the TRIPS waiver (2020)

In March 2020, the Canadian Parliament enacted Bill C-13, which amended numerous statutes, including the Patent Act.⁹ This Bill effectively enabled an extension of Canada’s existing TRIPS flexibilities in Section 19 of the Patent Act, which further enabled the federal Ministry of Health to grant an authorisation for a compulsory licence to construct, use and sell a patent invention in order to respond to a public health emergency. This legislative change provided Canada with greater flexibility to respond to the COVID-19 pandemic—a flexibility it now seeks to limit for other countries.

In October 2020, South Africa and India proposed to the WTO that countries be allowed to temporarily waive certain IP protections related to COVID-19 vaccines, diagnostics and therapeutics—under the Agreement on Trade-Related Intellectual Property Rights or TRIPS. Alongside the WHO, more than 110 WTO (mostly low-income) member states supported the resolution, as did hundreds of health research and development organisations, including Amnesty International and Doctors Without Borders.¹⁰

Throughout TRIPS waiver negotiations, Canada repeatedly reiterated the importance of ‘equitable, timely and affordable access to testing, treatments and effective vaccines’ in combating COVID-19.¹¹ Canada emphasised its ‘steadfast commitment to the development and delivery of safe, equitable and accessible COVID-19 vaccines’ and the importance of ‘a mechanism to equitably reallocate vaccine doses’.¹¹ They later noted that ‘equitable, timely and affordable access to testing, treatments and effective vaccines remains critical for controlling and ending this pandemic’.¹² On 6 May, Canada argued that ‘vaccine distribution needs to be made more equitable’ and for countries to ‘strive towards ensuring equitable access to vaccines across the globe’.¹³ Similarly, on 8 June, Canada noted its commitment to ‘the timely and equitable distribution of vaccines and medical products around the world’.¹⁴ On 28 July 2021, Canada argued that ‘substantial (vaccine) producers have a particular responsibility towards achieving equitable access to essential medical goods, especially for Members which are highly dependent on imports’.¹⁵

Yet despite this rhetoric and widespread support—including from the United States, which endorsed a waiver for vaccines (though not therapeutics or diagnostics) in 2021—Global Affairs Canada, under the direction of the Minister of International Trade at the time, Mary Ng, opposed the TRIPS waiver.¹⁶ It argued that the waiver could undermine existing IP protections and innovation incentives and instead pushed voluntary licensing and the use of existing TRIPS Agreement flexibilities as sufficient means to address existing IP-sharing needs.

An international push at WTO meetings for facilitating compulsory licensing of COVID-19 therapeutics was also met with oppositional statements from Canada, with the government emphasising that its ‘focus remains resolutely on ongoing and concrete initiatives addressing the supply and distribution challenges posed by COVID-19’.¹² Canada also failed to endorse the COVID-19 Technology Access Pool, a programme designed to facilitate voluntary licensing and technology transfer in order to ensure broader access to COVID-19 diagnostics, treatments and vaccines.¹⁷ Instead of these measures, Canada repeatedly pushed for facilitating voluntary licensing and technology transfer at WTO meetings. This approach came despite an abundance of evidence that voluntary measures make little meaningful impact on improving overall market supply.¹⁸ Voluntary measures provide pharmaceutical manufacturers with little incentive to engage, while simultaneously restricting licensing terms that stifle competition and reduce global supply.¹⁹ South Africa highlighted this point during TRIPS negotiations, noting that voluntary licensing agreements have minimal impacts on increasing the overall market supply.²⁰

Canada’s stance likely reflected both diplomatic alignment with other high-income countries and domestic industrial interest. While direct evidence of lobbying on the TRIPS waiver is limited, Canada’s life sciences policy environment has historically been shaped by close ties to the pharmaceutical industry.²¹ During the pandemic, Canada also committed billions to its domestic biomanufacturing sector, including partnerships with IP-holding firms—thus creating further incentives to avoid global commitments that could threaten these relationships (18, p2). These dynamics suggest that Canada’s position on the waiver may have been influenced not only by legal and diplomatic considerations but also by an interest in maintaining stable relationships with industry partners and supporting its domestic biomanufacturing strategy.

Bolivia-Biolyse and CAMR (2021)

In response to international pressure to implement the WTO’s Paragraph 6 Decision on compulsory licensing for export, CAMR was introduced in 2004 under Paul Martin’s Liberal government. Although it was lauded as a world-first legal mechanism, it has been widely criticised for being too bureaucratic and has only been used once, in 2007, to export antiretrovirals to Rwanda.²² In 2004, Canada became the first country globally to pass the Pledge to Africa Act (now known as the Canadian Access to Medicines Regime (CAMR)), enacting legislation to implement a specific TRIPS flexibility highlighted in the Doha Declaration.²² The Paragraph 6 mechanism, now codified as Article 31bis of TRIPS, was designed to address the challenges faced by countries lacking domestic manufacturing capacity to exercise compulsory licences. Article 31bis allows nations with manufacturing capabilities to issue compulsory licences specifically for the export of pharmaceuticals to those countries. Through CAMR, Canada could mandate the issuance of compulsory licences for drug production intended for export, without extending these licences for domestic use.

In March 2021, Biolyse Pharma, a Canadian-based manufacturer of sterile injectable medicines, publicly stated its intent to help bridge the supply gap by manufacturing and exporting COVID-19 vaccines to Bolivia and other low-income and middle-income countries. The Bolivian government struck a deal with Biolyse to seek a compulsory licence to produce and export COVID-19 vaccines without the permission of the patent holder through CAMR. Despite the impact of Biolyse’s capacity for Bolivians, a spokesperson for the Minister of Innovation, Science and Industry stated that Canadian assets, such as Biolyse, ‘were of a scale which was not of interest’ to the major manufacturers of COVID-19 vaccines.²³

Amidst this case in May 2021, Mary Ng, International Trade Minister, asserted that ‘The work we have been doing and the leadership we have been providing is very much about removing all barriers to vaccine access, whether it be production or supply chain or export restrictions…we’re trying to remove all barriers to access to vaccines’.²⁴ Yet when Bolivia notified the WTO and attempted to use article 31bis of the TRIPS Agreement to obtain a generic version of the Johnson & Johnson (Janssen) COVID-19 vaccine from Biolyse, the Canadian government would not even take the bureaucratic steps necessary to initiate the process. At the WTO, Canada’s Innovation, Science and Economic Development (ISED) portfolio pointed to its national implementation of the TRIPS Agreement as evidence that a waiver was unnecessary, asserting that CAMR ‘worked as intended.’ This claim however overlooks the critical limitations inherent within CAMR, which imposes significant barriers that impede swift access to essential medicines. For instance, the requirements for mandatory differential packaging and the addition of the medical product to a specific list (Schedule 1 of the Patent Act) also hinder the flexibility crucial in a dynamic response to a public health crisis. Moreover, the TRIPS requirement for importing countries to specify the quantity needed for each product under each compulsory licence when notifying the WTO further obstructs timely and effective responses.¹⁰

The workability of this export-oriented compulsory licensing regime is critical for low-income and middle-income countries lacking the domestic capacity to manufacture COVID-19 vaccines. Yet despite the Canadian government’s numerous claims to support vaccine equity, the inefficiencies and bureaucratic hurdles within CAMR made it impossible to overcome the IP barriers, underscoring the practical limitations of Canada’s purported flexibility.

INB negotiations on pandemics (2021–2024)

In December 2021, the World Health Assembly established an INB to draft and negotiate a convention, agreement or international instrument to strengthen pandemic prevention, preparedness and response.²⁵ Central to this process was the stated need to ensure equity and collaboration in access to pandemic-related health products and access to healthcare for all. Throughout the negotiations, IP remained a contentious sticking point.

Throughout negotiations, Canada’s INB delegation reiterated the role of social determinants of health and the resulting dramatic increases in inequities both within and across countries that were exacerbated due to the pandemic. It reiterated its commitment ‘to timely and equitable access to medical countermeasures’ citing that a ‘comprehensive approach to health equity’ involves the realisation of human rights, advancing gender equity, engaging civil society and communities and protecting persons living in vulnerable and marginalised situations.²⁶ In one INB opening session, Canada concluded with their commitment to finding language that ‘seeks to move the needle on health equity more broadly’ and that Canada is ‘committed to doing whatever is required to reach a meaningful and substantive outcome’. Canada also introduced gender-responsive language into the negotiation text,²⁷ emphasising gender-balanced representation in pandemic decision-making, advocating for a gender-responsive approach in health systems and including sex-disaggregated data in transparency measures. In Article 3, on the principles guiding the Agreement, Canada’s definition of equity highlighted that ‘equity is the absence of unfair, avoidable or remediable difference among groups of people, whether those groups are defined socially, economically, demographically or geographically or by other dimensions of inequality, including sex, gender, ethnicity, disability or sexual orientation’.²⁷

Despite these numerous equity-focused statements and amendments, Canada simultaneously made repeated amendments to remove and limit reference to IP waivers and access to pandemic products.²⁷ This included deleting critical provisions aimed at ensuring adequate implementation and full use of TRIPS flexibilities. For instance, in Article 11(4), Canada removed language that would have ensured that ‘the negotiated provisions do not interfere with the full use of the flexibilities provided in the TRIPS Agreement, including those recognised in the Doha Declaration on the TRIPS Agreement and Public Health,’ as proposed by several countries, including Colombia, South Africa and Egypt. In a later version of the text, Global Affairs Canada, in coordination with ISED, opposed measures requiring parties to ‘take appropriate measures to support […] time-bound waivers of […] intellectual property rights […] to accelerate or scale up the manufacturing of pandemic-related products’.²⁷ Canada also removed language that would have required parties to amend domestic legislation to fully implement TRIPS flexibilities, ensuring and facilitating the manufacture, export and import of health products during emergencies. Canada also deleted language that would have prevented ‘[p]arties [from] exercis[ing] any direct or indirect pressures on the Parties that undermine the right of WTO Members to use TRIPS flexibilities’.²⁷

These deletions highlight Canada’s reluctance to fully enforce practical measures that would facilitate equitable access to pandemic health products. By stating and emphasising the utility of TRIPS flexibilities and calling for solutions to IP-related barriers,²⁸ Canada’s actions nationally and at the INB and the WTO suggest a reluctance to implement these commitments effectively. While Canada has continued to showcase its large financial commitments to pandemic preparedness, prevention and response, and their clear statements in support of equity at the INB, the reality of Canada’s actions consistently highlights the separation of Canada’s vision of equity from IP considerations.

Discussion

Our findings suggest that Canada’s invocation of equity during the COVID-19 pandemic was not merely a rhetorical contradiction, but a deliberate strategy to redefine the boundaries of global health equity. In each of the three cases examined, Canada embraced the language of fairness and global solidarity while simultaneously obstructing or diluting the very mechanisms—such as the full use of TRIPS flexibilities, IP waivers and a peace clause that prevents governments from facing political pressure when invoking these flexibilities—that would enable equitable access to medicines. Rather than an incidental contradiction, this pattern suggests a strategic balancing act: preserving global goodwill while protecting domestic industrial policy, pharmaceutical partnerships and trade interests.

Policy recommendations

Building from these lessons, we suggest three actionable policy recommendations that would substantially further Canada’s capacity to respond to future pandemics in a truly equitable fashion by encouraging timely access to essential medicines for low-income and middle-income countries:

Commit to supporting IP waivers for public health emergencies of international concern

Throughout the INB negotiations, Canada has removed every mention of IP waivers from the Pandemic Agreement. Instead, the federal government should commit to supporting time-bound waivers of IP rights to accelerate or scale up the manufacturing of public health emergency-related products to the extent necessary to increase the availability and adequacy of affordable public health emergency-related products. This commitment could be bound to only occur in the instance of a formal declaration by the WHO of a Public Health Emergency of International Concern (PHEIC). A PHEIC is a formal declaration by the WHO of ‘an extraordinary event which is determined to constitute a public health risk to other Member States through the international spread of disease and to potentially require a coordinated international response’.²⁹ There have only been eight PHEIC declarations to date. A commitment from Canada to supporting IP waivers during PHEICs would not mean a general renunciation of the importance of IP, but rather a recognition of the importance of sharing and increasing the availability of access to life-saving medicines during extraordinarily rare and time-limited international public health crises.

Simplify the CAMR process

The more straightforward for low and middle-income countries and generic manufacturers to navigate the CAMR process, the more likely it is to be used.³⁰ In particular, Canada should immediately eliminate the Schedule 1 requirement that a product be first added to Canada’s list of pharmaceutical products that are under patent through an order by the Governor-in-Council, on the recommendation of the Minister of Industry and of Health. Canada remains the only country in the world that has added this bureaucratic burden, yet it serves little purpose outside of delaying the process. Additionally, Canada should remove the 2-year time limit on compulsory licences and allow unlimited renewals as well as provide permission to Canadian generic manufacturers to obtain a compulsory licence at the start of the application process. Each of the measures would allow generic manufacturers to reduce risk, obtain larger contracts and reduce production costs without needing to repeat the process for each order.³¹ Notwithstanding which policy mechanisms Canada chooses, an overall simplification and removal of burdensome restrictions from the application process will be essential to making the CAMR system workable and responsive to access needs.

Conditions on government-funded research and transparency

Canada’s Strategic Innovation Fund currently provides more than $4.5 billion CAD to biomanufacturing and life science projects.³² This provides the federal government with a significant opportunity to add clauses that ensure that these agreements include better clauses surrounding IP, while also facilitating absolute transparency in how these funds are used.

Canada presently lacks a unified legislative framework that governs ownership and commercialisation of IP arising from government-funded research. Instead, policies vary across federal agencies, provincial governments and individual institutions. Building on the promotion of IP clauses, it is crucial that the federal government secures rights in any inventions arising from its funding. To address these gaps, Canada should establish a national framework with clear and consistent guidelines on IP ownership and public-interest safeguards for government-funded research. This framework should ensure that the federal government retains defined rights. A Canadian version of the US ‘march-in rights’ could be structured to proactively prioritise access and affordability—ensuring that publicly funded health innovations are not only brought to market, but are made available at a price point accessible to all Canadians.

To address these gaps, Canada should establish a unified approach with clear and consistent guidelines on IP ownership for government-funded research. This approach would ensure that the government retains specific rights, such as the ability to intervene in cases where public interest is at stake, particularly when commercialisation is lagging or when critical public health issues arise. March-in rights should be designed to prioritise access and affordability for the public. Unlike the government’s existing compulsory licensing capabilities, a proposed version of march-in rights in Canada would proactively ensure that publicly funded innovations are not only commercialised but also made available at a price point that is accessible to all Canadians. In addition, it could act to hold recipients of public funding accountable for delivering tangible benefits to society. This would ensure that taxpayer-funded research translates into real-world solutions that are both accessible and affordable, thereby meeting the public interest more effectively.

Recognising that the development of comprehensive legislation to achieve these three objectives may take time, Canada could begin by introducing a set of standardised IP clauses into all government-funded research contracts. These clauses would define the ownership, commercialisation responsibilities and the government’s rights to intervene, effectively transposing the principles of government rights retention into the legal framework for research agreements. Drawing inspiration from the US Federal Acquisition Regulation, which offers standardised terms and conditions for government contracts, Canada can develop uniform policies for ensuring accountability, accessibility and affordability in the use of public funds for research.

While each of these recommendations is technically feasible, their implementation will require meaningful political commitment and a shift in policy priorities. In particular, aligning Canada’s domestic industrial strategy with global health equity goals will require greater transparency in government-funded research and innovation partnerships, the establishment of clear accountability mechanisms and stronger legislative support to enable IP flexibility during public health emergencies. Civil society engagement, parliamentary oversight and leadership from within relevant ministries are likely essential to drive this change.

Limitations

This study draws on publicly available documents, official statements and leaked draft texts from the (non-transparent) INB process, as such, it may not fully capture the behind-the-scenes factors that influenced Canada’s positions. This study also centres on IP measures and does not assess Canada’s other contributions to equitable access, which could provide a more balanced picture. Additionally, this study focuses solely on Canada. While the analysis endeavours to reveal a broader pattern relevant to other high-income countries, generalisability is limited. Future research could explore comparative analyses across high-income actors to better contextualise Canada’s policy choices.

Conclusion

Health Canada defines ‘health equity’ as ‘the absence of unfair systems and policies that cause health inequalities’.³³ Yet in the wake of an increasing and renewed emphasis on equity on the global health stage, there is an incentive for governments to disguise inequitable actions in modern equity-based framing. The instances explored in this study demonstrate that the Canadian government cannot genuinely lay claim to taking an ‘equitable approach’ if it fails to concurrently support IP sharing during global health emergencies. In absence of this commitment, its professed dedication to health equity remains unfulfilled.

Data availability statement

Data are available upon request.