TWN Info Service on Health Issues (Nov20/07)
16 November 2020
Third World Network

TRIPS Council to resume discussions next week on TRIPS waiver
Published in SUNS #9233 dated 16 November 2020

Geneva, 13 Nov (D. Ravi Kanth) – As the COVID-19 pandemic continues to ravage countries across the world, the need for putting people’s lives before the patents and profits of the big pharmaceutical companies could not have come a day too soon at the WTO, which is currently discussing a waiver for suspending crucial provisions in the TRIPS Agreement in combating the worst pandemic in the last 100 years, analysts said.

The WTO’s TRIPS Council is expected to resume on 20 November the suspended discussion on agenda item 15 concerning the “proposal for a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19” from South Africa, India, Eswatini (formerly Swaziland), and Kenya.

Ahead of that meeting, the advance minutes of the last TRIPS Council meeting held on 15-16 October were circulated to members on 5 November. (See SUNS #9214 dated 20 October 2020.)

The minutes contained in the restricted document (Job/IP/41) offer a detailed account of the positions held by members.


According to the 36-page restricted document, South Africa explained that there have not been “meaningful global policy solutions to ensure access” to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators as well as vaccines and medicines for prevention and treatment of patients in dire need.

With several vaccines on the anvil, including the latest vaccine candidates announced by Pfizer, Moderna, and Eli Lily among others, South Africa suggested that intellectual property rights (IPRs) should not become a major source of hindrance.

South Africa said, “Internationally, there is an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real-time basis.”

“Our joint proposal,” said South Africa, “requests a waiver to be granted to all WTO Members so that they do not have to implement, apply or enforce certain obligations related to COVID-19 products and technologies under Sections 1 (copyrights and related rights), 4 (industrial design), 5 (patents) and 7 (protection of undisclosed information) of Part II of the TRIPS Agreement. Let me stress that the proposed waiver would be applicable only to COVID-19.”

According to South Africa, “the waiver is limited and does not suggest a waiver from all possible TRIPS obligations, nor does it suggest a waiver beyond what is needed for COVID-19 prevention, containment and treatment.”

South Africa emphasized the need for the “waiver” to continue “until widespread vaccination is in place globally, and the majority of the world’s population has developed (herd) immunity, hence we propose an initial duration of [X] years from the date of the adoption of the waiver.”

India, which took the floor after South Africa at that meeting, emphasized that the proposal for a waiver is particularly important “to cater for those who have insufficient or no manufacturing capacities in the health products required to combat the COVID crisis.”

India, which has supplied medical products to more than 150 countries and “resisted attempts to corner the supplies by a few countries”, reminded that “in a global pandemic where every country is affected, we need a global solution.”

It emphasized that “our waiver proposal represents an open and expedited global solution to allow uninterrupted collaboration in development, production and supply of health products and technologies required for an effective COVID-19 response.”

Elaborating further on the urgent need for the waiver, India offered seven reasons.

They include:

(1) the need to overcome the growing IP infringement on COVID-19 products;

(2) the need to set aside the monopoly rights claimed by the inventors who received billions of dollars of public funds;

(3) the need to set aside voluntary licenses as pharmaceutical companies refuse to offer non-exclusive licenses;

(4) the need to avoid onerous conditions imposed by the pharmaceutical companies;

(5) “the waiver proposal does not suggest a waiver from TRIPS obligations, but only from these specific sections and that too only to the extent the same are essential for effective handling of the COVID-19 crisis”;

(6) the waivers granted to LDC members in Articles 70.8 and 70.9 and their rights under Article 66.1 of the TRIPS Agreement are not going to be impacted by the waiver; and

(7) the duration of the waiver is not for an “indefinite” period – and only until the COVID-19 is effectively tackled and that the waiver will be reviewed by the General Council annually in accordance with the provisions of Article IX (4) of the WTO Agreement.

“It’s time for Members to take collective responsibility and put people’s lives before anything else,” India said, emphasizing that “history will not judge us kindly if we do not immediately save large-scale loss of human life and health and all global dysfunction to prevail over global cooperation.”

Kenya, which also co-sponsored the waiver proposal, said the COVID-19 pandemic has slowed down the pace by many countries to realize their development agenda, particularly the United Nations Sustainable Development Goals.

It argued that “in their efforts to contain and manage the pandemic, many developing countries are facing public health challenges, due to restrictions brought about by intellectual property protection,” suggesting that “intellectual property is at the core of the fight against the pandemic and as the TRIPS Agreement provides, protection and enforcement of intellectual property should be to the mutual advantage of both the producers and users, in a manner that is conducive to social and economic welfare, and that ensures the balancing of rights and obligations.”

Kenya said “currently, access to the technological innovation and production required to respond to the pandemic is curtailed by IP protection and this extends beyond patents, to copyright, industrial designs and trade secrets, which also apply to products and technologies that are urgently needed to address the effects of COVID-19.”

Kenya said more should be done within the context of the TRIPS Agreement to “ensure that developing countries of the WTO are able to promptly respond to COVID-19 pandemic through access to vaccines, diagnostics, personal protective equipment and other medical technologies.”

Nigeria commended South Africa and India for their joint proposal which “has come at the right time.”

It underscored “the importance for WTO Members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and trade secrets do not create barriers to the scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19 while preserving intellectual property rights of Members.”

Bangladesh said that the proposal by South Africa, India, Eswatini and Kenya “presents an extremely urgent call during this time of global crisis caused by COVID-19 pandemic”.

It called on the “members to act collectively to save societies and economies from the devastating impacts of the pandemic” and sought a “favourable consideration of the proposal.”

Sri Lanka welcomed the proposal for a waiver and lent “unequivocal support”.

Sri Lanka, which is experiencing a second wave of COVID-19 cases, argued that “an effective response to COVID-19 pandemic not only requires timely access to affordable medical products, but access to diagnostic kits, medical masks, other personal protective equipment and ventilators is also vital.”

It agreed with the proponents that the “adoption of this proposal will overcome potential obstacles that above categories of intellectual property rights may create to get timely and unfettered access to technologies and products needed to address the pandemic.”

Sri Lanka cited several problems faced by its companies in producing the vital swab and other products to address COVID-19, suggesting that the proposal for a waiver will “require legal certainty in the interim period.”

It called for “multilateral solutions, more particularly this joint proposal which is before us in assuring and delivering fair access to COVID-19 treatment for those in need in the developing countries.”

Pakistan welcomed the proposal by the four countries, saying that “it is high time that WTO stood up and made itself counted in the global fight against the pandemic.”

It concurred with the proponents that “there is an urgent call by many for global solidarity for unhindered global sharing of technology and know-how, cheap and easy access to medicines and medical equipment, and the enhancement of global production capacities of these products for developing countries.”

Venezuela thanked the proponents for introducing their proposal, saying that “extraordinary situations such as those resulting from the COVID-19 pandemic, call for equally extraordinary decisions.”

It argued that “in the context of this universal emergency” this “waiver is required for the benefit of all humanity, since no one can be safe in this world until we are all safe.”

Nepal said that the proposal for a waiver seems “an appropriate and timely initiative in the context of the current COVID-19.”

It argued that “sufficient policy space as per the need of country’s context is essential to overcome the difficulties faced” by members.

The Philippines said the proposal by the four countries for a TRIPS waiver is “an issue of profound importance not just for TRIPS Council members but also for all participants of the multilateral trading system”.

Nicaragua supported the proposal, saying that it is of “great importance amid the current crisis, since it is a measure that would offer developing countries like Nicaragua timely and affordable access to the medical products, medicines, vaccines, inputs and medical equipment necessary for detecting and treating COVID-19.”

Chile welcomed the proposal, saying that it has defended and promoted balanced IP systems which both foster innovation and meet the needs of society as a whole.

Chile sought clarifications on a range of issues, including “what effects the proposal may have, who it would benefit and the way in which it could be implemented, if approved.”

Turkey said that the proposal has raised important issues, suggesting that it is ready “to engage constructively to achieve a global strategy so that everyone can better cope with this global health crisis.”

Egypt said it aligns itself with the statement made by Tanzania on behalf of the African Group, suggesting that there are limitations on relying on a “case-by-case” approach for using the TRIPS flexibilities.

The proposal by the four countries provides a very good basis on the role of the WTO in the current unprecedented global crisis.

Indonesia said that “the waiver” would hopefully boost cooperation in research and development and in scaling-up manufacturing of necessary medicines and vaccines to ensure that no member is left behind.

As the COVID-19 cases are rising at an exponential scale, it said there is no global recovery, both in global public health and economy, “if some Members are left behind in the recovery processes.”

Argentina supported the proposal for a waiver, saying that the world needs extraordinary solutions to overcome the extraordinary crisis.

Chad, on behalf of the Least Developed Countries (LDCs), said that the intention of the joint proposal is good, adding that the LDC group is “open and flexible to discussing the proposal.”

Chad said that it is important to ensure that IPRs “do not become barriers to the provision of affordable medical products for all, in particular, for those who need them most and/or are ill.”

Thailand said it always supported a right balance between IP protection and public interest. It said that it would need clarifications on the proposal.

Tunisia welcomed the proposal for a waiver, saying that it is open to further discuss the proposal.

Tanzania, on behalf of the African Group, welcomed the proposal, saying the TRIPS agreement should not prevent members from taking measures to protect public health, an important aspect at this critical time.

Ecuador said that it agrees with “the urgency and humanitarian aims behind the proposal for a waiver,” and asked for re-working the initiative on several issues it had raised.

In short, there is growing support for the proposed waiver from developing and least-developed countries.

However, the United States, the European Union, Japan, Switzerland, and Australia among others opposed the proposal.