TRIPS Council Agrees to Continue Discussions
on IP Response to COVID-19
At a meeting of the Council for Trade-Related Aspects of
Intellectual Property Rights (TRIPS) on 20 July 2021, WTO members agreed to
continue consideration of the proposal for a temporary waiver of certain TRIPS
obligations in response to COVID-19 and other related proposals. Members
approved a status report which they tasked the chair to deliver at the General
Council at its next meeting on 27-28 July.
The
report will provide a neutral and factual account of discussions held at the
TRIPS Council since India and South Africa first introduced on 15-16 October
2020 document IP/C/W/669, requesting a waiver from
certain provisions of the TRIPS Agreement for the prevention, containment and treatment
of COVID-19. The proposal has since been co-sponsored by the delegations of
Kenya, Eswatini, Mozambique, Pakistan, Bolivia,
Venezuela, Mongolia, Zimbabwe, Egypt, the African Group, the Least Developed
Countries Group, the Maldives, Fiji, Namibia, Vanuatu, Indonesia and Jordan.
Over
the last nine months, members have discussed the waiver request in various
formal and informal TRIPS Council meetings, exchanging views, asking questions,
seeking clarifications and providing replies and information. In a bid to
reconcile positions, co-sponsors issued a revised proposal (IP/C/W/669/Rev.1),
which was introduced at a formal TRIPS Council
meeting on 8-9 June. At that meeting, members moved closer to a
text-based process to address the proposals put forward by delegations aimed at
improving the international response to COVID-19 and achieving the common goal
of providing global equitable access to vaccines and other medical products.
Following
the agreement to engage in a text-based process, discussions continued in
small-group consultations, at informal open-ended meetings on 17 and 30 June,
and on 6 and 14 July, where members also discussed a proposal for a draft
General Council declaration on the TRIPS Agreement and Public Health in the
circumstances of a pandemic (IP/C/W/681),
issued by the European Union on 21 June. The EU proposal calls for limiting
export restrictions, supporting the expansion of vaccine production, and
facilitating the use of current compulsory licensing provisions in the TRIPS
Agreement, particularly by clarifying that the requirement to negotiate with
the right holder of the vaccine patent does not apply in urgent situations such
as a pandemic, among other issues.
The
two texts discussed in the TRIPS Council reflect that positions remain
divergent. While delegations remain committed to the common goal of providing
timely and secure access to high-quality, safe, efficacious and affordable
vaccines and medicines for all, disagreement persisted on the fundamental
question of what is the appropriate and most effective way to address the
shortage and inequitable access to vaccines and other COVID-related products.
In
the context of the text-based process, the chair of the TRIPS Council, Ambassador
Dagfinn Sørli of Norway,
reported on the discussions held by delegations on the topics of “scope”, both
from the perspective of products and of IP rights, on “duration”,
“implementation” and “protection of undisclosed information”. Delegations engaged
positively and their detailed substantive exchanges helped clarify various
aspects and nuances of positions.
Co-sponsors
explained at those discussions the proposed scope of the revised waiver request
by illustrating the range of products and processes, as well as the sections of
the TRIPS Agreement they consider relevant to fight COVID-19. On the duration
of the proposed waiver, discussions contributed to clarifying the intended
operation of the termination clause in the revised waiver proposal, as well as
the relationship between the annual review suggested and the foreseen duration
of the waiver (at least three years from the date of its adoption).
In
the area of implementation, discussions focused on a number of specific
questions, including transparency and provisions to limit the long-term impact
of disclosure of confidential data during the waiver period. Delegations also reflected on what steps will
be needed at the domestic level. In the area of regulatory data, only a few
exchanges could take place, as there was not enough time available, suggesting
that members may come back to this issue at a later stage.
The
chair of the Council stressed discussions in the small group sessions were
interactive and detailed, reflecting genuine engagement and helping further
illuminate a number of substantive points. At the same time, delegations
indicated their willingness to continue discussions and identified several
topics that might merit focused discussions going forward.
Unable
to complete the consideration of the revised waiver request, the TRIPS Council
will therefore continue discussions, including through small-group
consultations and informal open-ended meetings, and report back to the General
Council as stipulated in Article IX:3 of the
Marrakesh Agreement. The TRIPS Council also agreed to continue
in the same manner the consideration of the other related proposals by members.
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 to the General Council. Given that this proposal was initially
submitted on 2 October, the 90-day time-period expired on 31 December 2020 and
subsequent General Councils have endorsed the TRIPS Council decision to
continue consideration of the proposal.
The
chair announced his intention to invite delegations for an open-ended informal
meeting of the TRIPS Council in early September to touch base on the state of
play. The next formal meeting of the Council is scheduled for 13-14 October,
but the chair stressed the possibility of convening a formal meeting ahead of
that date if required.