Copyright COVID-19 Design Patent Trade Secret

India on TRIPS Waiver: Will WTO Pass the Test of Humanity?


Pic of the game Cards Against Humanity

Hopefully this isn’t the game

India, through its Ambassador and Permanent Representative at the WTO, delivered a short but strong statement at the WTO TRIPS General Council Meeting held between 16-18th December, 2020, on the on-going TRIPS waiver proposal. (context here for those unaware of the waiver proposal – in brief, South Africa and India proposed a waiver for the WTO TRIPS provisions that relate to, i.e., restrict, vaccines, treatment options, etc for Covid-19, for the duration of the pandemic). Pointing out that making the vaccines accessible and affordable is going to be a test of our humanity, India also noted that history will remember the WTO’s response to this pandemic, and that the WTO needed to prove they can deliver in a time of crisis. India’s statement also pointed out that currently ongoing voluntary activities such as COVAX and ACT-accelerator were inadequate to meet global needs, and that none of the pharma companies who have developed vaccines have joined WHO’s C-TAP. India also indirectly noted the hypocrisy of developed countries when saying “ Global community should not be looking inward at this juncture. Though we have repeatedly heard that no one is safe until everyone is safe, yet even the most optimistic scenarios today cannot assure access to vaccines and therapeutics for all, even by the end of 2021.

India’s statement comes some days after South Africa (the other initial co-sponsor of the waiver proposal) delivered a much longer, and stronger statement at the TRIPS Council meeting. South Africa specifically called out the voluntary measures (that US, EU, Japan suggested as the best solution) as ‘ad hoc, non-transparent and unaccountable’ deals that reinforce ‘vaccine apartheid’. It also detailed in depth how the waiver proposal is a calibrated and proportionate response suggestion (i.e. how it wouldn’t apply to non-Covid drugs, counterfeits, etc, while also noting that quality of drug and IP protection over a drug have no connection). South Africa’s statement is definitely worth reading in full and KEI has made it available here.

Regardless of this – EU’s statement, on 18th December, reflects that it still believes that intra-TRIPS solutions are the best way forward. On on-going arrangements such as COVAX it had to say: “COVAX is indeed an excellent tool for wealthier countries to provide vaccines for deployment in countries with fewer financial means.” (note: this is as opposed to measures which include these ‘poorer’ countries doing their own manufacturing! Colonial legacy of holding on to means of production?). EU also stated that compulsory licensing is a valid way forward as well (it would be wonderful if this memory stays sharp years down the line, in non-Covid contexts, when member countries may decide to implement CLs for reasons they choose as valid, rather than when EU says ‘now its okay’). EU’s statement is available here.

On a related and very informative note – on the Medicines Law and Policy blog, Christopher Garrison has put together a wonderful read on the various issues involved in scaling up producing of Covid-19 related treatments etc, when considering the whole “intellectual property stack” (including among other things the often severely inadequate ‘disclosures’ that patents are supposed to have but don’t.) I’m reproducing one key image below – but the whole article is worth reading in full.

Please go to link for data

Table from Medicines Law and Policy blogpost by Christopher Garrison, available here

For those interested, India’s full statement, taken from here, has been reproduced below:

“Statement by India – Delivered by Ambassador & PR to the WTO

Agenda 13– TRIPS COUNCIL MATTERS

STATUS REPORT ON THE CONSIDERATION BY THE TRIPS COUNCIL OF THE “PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19” (IP/C/W/669) – STATEMENT BY THE CHAIR OF THE COUNCIL FOR TRIPS

Thank you Chair.

We thank the TRIPS Council Chair for the status report. We would also like to thank the Members for a constructive debate in TRIPS Council on the Waiver Proposal. More than half of WTO Membership has expressed support. We also acknowledge the tremendous support from various Organisations and multilateral agencies. Rarely has an issue being dealt within WTO, united so many divergentgroups of society across developed, developing and Least Developed Countries in delivering a clear message.

While discovering vaccines was a test of science, making them accessible and affordable is going to be a test of our humanity. Now that we can see the silver lining in terms of emerging successful vaccines; it is in every Member’s interest, economic or otherwise, that this pandemic is brought under control as early as possible by providing an equitable, affordable and timely access to vaccines for all. Even for economic argument, 1%of improvement in world GDP from baseline scenario will add more than US$ 800 billion in global output.

During the initial stages of pandemic, we have seen nations pursue their health security goals. All of us witnessed the shortages of essential COVID-19 items, like PPE kits, gloves, sanitizers etc. at the start of the pandemic. But the world was able to upscale the manufacturing of these items by pooling resources and production capacities. At present, we need the same pooling of IP rights and know-how for scaling up the manufacturing of vaccines and treatments, which unfortunately has not been forthcoming, necessitating the need for waiver.

Chair, we would like to emphasize that this is not a proposal only for India but for the global community at large. India may be having the required manufacturing capacity and the national legislations to cater to its needs. But we believe that in a global pandemic, where every country is affected, we need a global solutionGlobal community should not be looking inward at this juncture. Though we have repeatedly heard that no one is safe until everyone is safe, yet even the most optimistic scenarios today cannot assure access to vaccines and therapeutics for all, even by the end of 2021.

WTO has responsibility to ensure that any of its agreement including TRIPS do not become a barrier to accessing vaccines, treatments, or technologies in the global response to COVID-19. Our Waiver Proposal is a targeted and proportionate response to COVID-19, as it seeks waiver for a limited period from four specific sections of the TRIPS Agreement. It will ensure that the intellectual property rights do not restrict rapid scaling up of manufacturing of COVID-19 products. All Members have agreed that real challenge now is to ramp up manufacturing capacity.

Chair, we welcome the global cooperation initiatives including COVAX and ACT-accelerator. However, these initiatives are inadequate to meet the massive global needs of the 7.8 billion people of this world. None of the pharma companies developing the vaccines have joined WHO’s C-TAP initiative which encourages voluntary contribution of IP, technology and data to support global sharing and scale-up of manufacturing and supply of COVID- 19 medical products.

Compulsory licenses are issued on a country by country, case by case and product by product basis, where every jurisdiction with IPs would have to issue separate compulsory license, practically making collaboration among countries extremely onerous. While the proponents encourage the use of TRIPS flexibilities, the same are time-consuming and cumbersome to implement. Hence, their use in context of COVID-19 pandemic does not present a viable option.

Chair, over the course of four (formal and informal) meetings of TRIPS Council, proponents have provided substantive answers including evidence based answers to the questions raised by some Members, with the spirit of constructive engagement. We will be interested in knowing that further evidences are sought. 

Chair, it is important to keep in mind that how the WTO Membership chooses to respond to this pandemic today will be remembered for years to come. We need to take time-bound action now and prove to the world that WTO can indeed deliver in times of crisis. History is being written today. It is up to the Members to choose which side of history they would like to be. We hope that all WTO Members will rise to the collective call of action and can achieve consensus for the Waiver that is so crucial for saving people’s lives.

Thank you, Chair”

Readers interested in more details on the proposal can view our earlier posts here and here.

Please click here to view our other posts related to COVID-19 and here to view other important IP developments related to it. 

2 comments.

  1. Sriram Kannan

    Another excellent post ! It is indeed disappointing to note that in-spite of surge in cases due to second or third wave [at the time of this writing – London has reported a highly mutant variant of the virus, Japan’s cases daily case load has been trending at 2000 for past 7 days, US repetitive high case-loads is already putting its reputed medical fraternity at risk of further doubts in its ability to contain the virus], however each country chooses to call it, Western Countries are still not forth coming in waiver of the IP related aspects for COVID vaccines. India and SouthAfrica, have made the right approach of taking a firm stand against Western countries approach. SouthAfrica is right is in calling this situation as “vaccine aparthied”. Two pertinent question to ask EU and the rest of IP dominant countries would be – even if seems satirical – “If they do not want to support their erst-while colonial partners now when human life is at stake by waiving off the TRIPS charge, then when will they be ready for it?” and “In Post-COVID free world, when holidaying and leisure activities picks up across the same colonial partners, who are now suffering, – will they still allow their citizens to do trekking or safari visits, without the risk of them “carrying back” the virus home?”

    Reply
    1. Swaraj Paul Barooah Post author

      Thanks for your comment – and indeed – it would’ve been interesting to see what type of responses questions like yours receive. Unfortunately, South Africa seems to have gotten it spot on – vaccine apartheid. One wonders if there will be a tipping point, if (as several experts are predicting) another pandemic hits in the near future.

      Reply

Leave a Reply

Your email address will not be published.