Inflection Point? TRIPS Waiver proposal

THE TRIPS WAIVER PROPOSAL – AN IDEA WHOSE TIME HAS COME?

Picture this, more than half a year into the pandemic of COVID-19, upwards of 38 million infections, a million and more lives lost; vaccine nationalism embraced by politicians of all stripes; hedged bets on numerous bilateral deals; short-termist planning for vaccines for a pandemic that might last years; economies in dire straits; limited manufacturing capacities; inadequate supply of all medical products; all this on the back of rising infections and mortality, with millions still susceptible.

We are here.

And now consider this, a new legal measure which in one stroke liberalises manufacturing capacities world over for medical products to fight the pandemic, results in technology transfer, sparks collaborations across regions, redraws power dynamics between countries and companies. As a result, billions of people get access to medical products, sooner than later, at affordable prices because the causes for artificial scarcity, to an extent have been addressed. All of this can take shape in an expanded policy space for countries with reduced political and commercial pressures.

We potentially can get here, if countries wish so.

This, in essence is what countries will discuss this week and in the coming months at WTO’s TRIPS Council and beyond.

South Africa and India, with the increasing support of a number of other countries, have suggested that all countries should temporarily be waived of their obligations under TRIPS agreement in order to fight the pandemic comprehensively. The proposal essentially 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 requests the TRIPS Council to recommend to the General Council  a waiver for all WTO members so that they do not have to implement, apply and enforce certain provisions of the TRIPS Agreement, while responding to the COVID-19 pandemic. The proposal seeks to waive certain obligations enshrined under Section 1 (on copyrights and related rights), 4 (industrial designs), 5 (patents) and 7 (protection of undisclosed information) of Part II of the TRIPS Agreement. It also seeks to protect countries from the application of dispute settlement rules to such actions in relation to the pandemic response.

Such an internationally applicable rule will immediately free up policy space for countries to take bold measures to address the pandemic including by regional collaboration, technology transfer. It is also expected to take the edge of political pressures that decisions such as compulsory licensing of drugs, for example, typically attract. 

This is a discussion that is long overdue, some experts believe, and the pandemic proves to be an inflection point to bring these deliberations into a rule-making institution, such as the WTO.  The inevitable comparison will be with WHO’s voluntary mechanism to share technology, the COVID-19 Technology Access Pool that has had few takers. (As Geneva Health Files has reported before, WTO is increasingly becoming crucial for global health related matters.)

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