[Ip-health] WTO: Members to continue discussion on proposal for temporary IP waiver in response to COVID-19

Thiru Balasubramaniam thiru at keionline.org
Fri Dec 11 21:58:01 PST 2020


Members to continue discussion on proposal for temporary IP waiver in
response to COVID-19

At the meeting of the Council on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) on 10 December, WTO members agreed to continue
discussion on a proposal by India and South Africa for a temporary waiver
of certain TRIPS obligations in response to COVID-19. A status report will
be submitted to the General Council meeting on 16-17 December indicating
the current lack of consensus on this issue and highlighting the common
goal shared by members of providing access to high-quality, safe,
efficacious and affordable vaccines and medicines for all.

The proposal (IP/C/W/669
was initially submitted by South Africa and India on 2 October and has
since been co-sponsored by the delegations of Kenya, Eswatini, Pakistan,
Mozambique and Bolivia. The document calls for a waiver for all WTO members
of certain provisions of the TRIPS Agreement in relation to the
“prevention, containment or treatment” of COVID-19. According to the
proponents, the objective is to avoid barriers to the timely access to
affordable medical products including vaccines and medicines or to
scaling-up of research, development, manufacturing and supply of essential
medical products.

The waiver would cover obligations in four sections of the TRIPS Agreement
<https://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm> — Section 1
on copyright and related rights, Section 4 on industrial designs, Section 5
on patents and Section 7 on the protection of undisclosed information. It
would last for a specific number of years, to be agreed by the General
Council, and until widespread vaccination is in place globally and the
majority of the world's population is immune. Members would review the
waiver annually until termination.

Inclusive and comprehensive discussions on the waiver proposal were first
held at the TRIPS Council on 15-16 October and subsequently at informal
meetings on 20 November and 3 December. In those meetings, members
exchanged views, sought clarifications and provided information on a number
of questions relative to the functioning and impact of the requested waiver
but did not reach a consensus. Members also held intense consultations
among themselves and with the chair of the TRIPS Council, Ambassador
Xolelwa Mlumbi-Peter of South Africa, in order to seek common ground.

As a result of the consultations, the chair proposed that the TRIPS Council
provide a neutral and factual communication to the General Council
reflecting the state of play of discussions and the absence of consensus on
the waiver proposal in the TRIPS Council at this time. The communication
would indicate that the TRIPS Council has not yet completed its
consideration of the waiver request and may not be able to do so within the
90 days stipulated. Therefore, it would propose that the TRIPS Council
continues its consideration of the waiver request and reports back to the
General Council as stipulated in Article IX:3 of the Marrakesh Agreement.

As per WTO rules, waivers concerning WTO agreements must be submitted
initially to the relevant Council which has 90 days to submit a report to
the Ministerial Conference or, in its absence as is the case this year, to
the General Council. Given that this proposal was initially submitted on
2 October, the 90-day time-period expires on 31 December 2020 and the next
meeting of the General Council will be the last before the end of the year.

In the meantime, the chair encouraged delegations to continue to engage
with each other and to seek common ground with regards the waiver request,
including in relation to scope and substance in order to achieve the common
objective shared by all WTO members.

Members agreed on continued consideration of the proposal in future TRIPS
Council meetings but offered no indication of changes in their well-known
positions. The proponents argued that IP protection hindered the urgent
scale-up of vaccine production and reiterated that many countries —
especially developing countries — may face institutional and legal
difficulties when using TRIPS flexibilities, which they saw as a cumbersome
process for the import and export of pharmaceutical products. A number of
developing and developed country members reiterated their opposition to the
waiver proposal, noting that there is no concrete indication that
intellectual property rights (IPRs) have been a genuine barrier to
accessing COVID-19 related medicines and technologies, and that IP was only
one aspect of many that affected the manufacture and distribution of the
new vaccines.

In a separate communication, four members (Australia, Canada, Chile and
Mexico) noted this issue merits further reflection and significant
consideration by the TRIPS Council, in order to identify any specific and
concrete IP-related challenges faced by WTO members in addressing COVID-19.
A series of questions were posed by these members with the aim of enriching
the upcoming discussion. Proponents were asked to cite examples of where IP
challenges have impeded or prevented local production or manufacturing and
the timely procurement of COVID-19 diagnostics, equipment, therapeutics or
vaccines, and of when and how they were not able to complete processes
toward the issuance of compulsory licences under Article 31 of the TRIPS
Agreement in relation to COVID-19. Clarification was also required on how
the proponents would envisage giving effect to the waiver under members’
domestic IP legal regimes.
Next steps

The next formal meeting of the TRIPS Council is scheduled for 10-11 March
2021. In order to allow for further consideration of the waiver request in
the more immediate future, the chair proposed to consider meeting in
January and early February to advance discussions.

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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