TRIPS waiver discussions: moving the needle

TRIPS WAIVER: THE NEEDLE HAS MOVED, BUT THE FIGHT IS ON

EU bloc and others, push for TRIPS flexibilities, a defining departure from the past

Countries are making slow but sure progress in discussing a proposal to temporarily waive certain obligations under the TRIPS agreement at the WTO. After an informal meeting of the TRIPS Council last week, countries are now having bilateral discussions seeking clarifications from co-sponsors of the proposal including South Africa and India.

The waiver proposal seeks to allow all countries to not grant or enforce intellectual property protection for the duration of the pandemic, until widespread vaccination has been achieved. The proposal recognizes intellectual property, trade secrets, industrial designs, as barriers to sharing technology. 

While the co-sponsors of the proposal are optimistic about the extent of support the proposal has been gaining steadily, battle-hardened activists and observers who have weathered these tricky discussions on intellectual property and access to medicines for decades, do not see any let up by the few but powerful, key, rich countries opposing this proposal.

Irrespective of the outcome of this proposal, whether it will be ultimately backed by consensus (or a vote) from WTO member states, experts feel that “needle has already moved” as far as discussions on intellectual property as a barrier to access to medicines is concerned. Despite the prevailing uncertainties in the institution itself, WTO has emerged as a forum where these discussions are taking place. As we have pointed out before, this is significant, given that issues on IP and health do not often find adequate space for debate at WHO – even during this pandemic.

This story tries to capture prevailing dynamics shaping the discussions on this proposal, it also reviews key statements from certain countries and presents the possible course the proposal could run in the coming weeks.

Image credit: Photo by Maksim Goncharenok from Pexels

THE TRIPS COUNCIL INFORMAL MEETING – November 20, 2020

As per a previously adopted procedure, the discussion of this item had been suspended (during the meeting on 15-16 October) to give members more time to consider the proposal. The informal meeting was meant to facilitate discussions and to find out if countries could move towards a consensus. Informal meetings do not allow for formal decisions to be taken, and yet are important since these discussions take place at a multilateral level where countries can debate and seek clarifications.

While nearly 30 countries took the floor to air their concerns and seek more details on the proposals, the co-sponsors were of the view that sufficient time was not given to conclude the discussions. (It is hard to understand why it was not possible to enable continuing the discussions on one of the most significant policy decisions this year)

The Chair of the meeting, Ambassador Xolelwa Mlumbi-Peter of South Africa, said that discussions will continue on a bilateral basis.

The proposal is now being co-sponsored by South Africa, India, Kenya, Eswatini, Mozambique and Pakistan. Nigeria has expressed interest in becoming a co-sponsor of the proposal.

The co-sponsors are now working to convert interest shown by some WTO members into firmer support. “There is a silent majority who have not spoken up. But we believe that they are in favour of the proposal”, a diplomatic source briefed this reporter.

It has not been possible to verify the extent of this support. Last week MSF had indicated that the proposal had support from nearly 100 countries.

India, Sri Lanka, Tunisia, Egypt, Cuba, Tanzania (on behalf of the African Group), Venezuela, Nigeria, Bangladesh and Jamaica expressed support for the proposal at the meeting.

It appeared that certain countries in Latin America were still undecided on their position with respect to the proposal including Colombia. Argentina had expressed support for the proposal in the previous TRIPS Council meeting.

While consensus is very much the tradition in WTO, co-sponsors do not rule out a vote completely. “If a country has reservations about the proposal, they might abstain during a vote. Even abstention in the event of a vote, will help us”, a diplomatic source told Geneva Health Files.

There was a perception that although opponents to the proposal remained steadfastly unassuaged, the tone from some of these countries was more constructive and “less attacking”, several people who followed the meeting said.  Brazil, United States, the European Union, Japan, Canada, UK, and Switzerland have opposed the proposal.

SOME EXCERPTS FROM KEY STATEMENTS MADE BY COUNTRIES

We present some excerpts from the statements made by countries, in no particular order. It is instructive to see country positions on this matter.

Eswatini

“…countries that are of the view that they will not benefit from the waiver, or do not meet the waiver should not deny other countries, this policy option and curtail the tools available to them to contain the pandemic.”

India

“The waiver is more than just a legal mechanism. It is a statement of intent, by all countries that they accord highest value to protecting human lives, rather than protecting private profits.

…We believe it would be naive for any country to think that it can win over a virus which knows no boundaries, by simply vaccinating their own population.”

South Africa:

“..Ad hoc, non-transparent and unaccountable bilateral deals that artificially limit supply and competition cannot reliably deliver access during a global pandemic. These bilateral deals do not demonstrate global collaboration but rather reinforces “nationalism”, enlarging chasms of inequity.”

China

“We think in the trade toolkits waivers could be a useful tool to reduce uncertainty. There is no single answer to this proposal in terms of yes or no. It is necessary to have detailed and constructive analysis and to continue discussing.”

Sri Lanka

“…temporary waiver provides a critical policy space for WTO members to take measures to enable competition through multiple producers and ensure adequate supply at affordable rates.”

Mexico

“..We believe that the TRIPS agreement together with a Doha Declaration on the TRIPS agreement and public health are sufficient to address current challenges.

In addition, we should note that in virtue of the TRIPS Council agreement of November 2015, LDCs are already exempted until 2033 of these specific obligations under the TRIPS agreement with regard to pharmaceuticals…”

Brazil

“…Regarding scope, we would like to request the proponents to further elaborate the rationale for including industrial designs in the proposal. Several doubts have also arisen with regards to copyright. We would invite the proponents to further specify the cases in which wavering copyrights could be pertinent for preventing containing or treating COVID-19.

We would like to request the proponents to elaborate on how members, facing legal and institutional difficulties when using flexibilities would automatically and expeditiously overcome legislative and institutional barriers for the successful implementation of a waiver.”

US

“..If the waiver were granted as requested, at least 34 separate paragraphs of the TRIPS agreement would no longer apply. This is a substantial departure from past WTO waivers.

…Regarding proportionality and problem identification could the proponents explain how the waiver is a proportionate response to covid-19? Could the proponents provide to data that establishes that the identified trips obligations have systematically hindered or block the prevention containment or treatment of covid-19?  With respect to scope that the proponents explain how members would determine whether a measure is quote is related to the prevention containment or treatment of covid-19 and this falls within the scope of the proposed waiver…”

EU

“…Domestic legal frameworks should properly reflect the flexibilities provided by the TRIPS agreement, such as the possibility of issuing a compulsory license, including for production for export to vulnerable countries that lack production capacity or including fast-track procedures that can be used in health emergencies. The EU is ready to discuss with all WTO members what can be done to facilitate the implementation of these flexibilities…”

Pakistan

“…Pakistan has found it particularly difficult to implement the compulsory licensing provisions due to various limitations of time, price quantity and regional production. The grant of compulsory license is an extremely arduous and lengthy procedure, posing legal complexities. Therefore, the flexibilities are not effective and insufficient for the scale and urgency of the current crisis.

….As custodians of the world trading order, I believe no one would like to be known for saving fish, but not human lives.”

Israel

“…However so far we have not identified how IP has acted as a barrier to accessing vaccines, treatment or technologies in the global response to covid-19. Israel would like to encourage active dialogue between governments to explore how best to work together to prevent contain and protect covid-19 including using TRIPS compliant license models…”

Singapore

“…the nexus between IP and access is complex and multifaceted. Empirically IP has been an enabler rather than an obstacle to Innovation and Global change. Hence all members must be ready to engage constructively to understand each other’s concerns regarding IP in the fight against Covid-19.”

Canada

“..Canada does not see these concerns as suggestive of issues with the trips such as that would necessitate the waiver. Canada remains the only member to have used this special compulsory licensing system under article 31bis and can thus observe on the basis of concrete experience that this system has worked as intended. Article 31bis only used once does not suggest that the system is inadequate rather Canada believes that this suggests that the overall trips regime works as part of the broader international framework that provides members with sufficient latitude and flexibility such as there has been limited or no need to issue compulsory licenses under article 31bis. ..”

United Kingdom

“We would like to stress that and it’s hard the intellectual property system has never been about locking up knowledge. It is always been concerned with balancing the need to incentivize Innovation and creativity with the need to allow Society to benefit from the fruit of that Innovation. Having studied the proposal in detail we must ask how would such a waiver even operate, how would it be implemented into national legislation? How would this help countries like in manufacturing capacities and even if limited in time the waiver creates long-term uncertainty and undermines the system for the future including future pandemics. Waiving the intellectual property system, it simply move us away from solution not towards them.

In fact, the generics industry have pointed to support for an effective and balanced intellectual property framework as a key factor to enable research and development accelerate manufacturing scale up and facilitate licensing…”


Continues…

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