WTO Debates Text-Based Discussions for an
Urgent IP Response to COVID-19
·
60 Delegation
Proposal and EU Response Papers Attached
WTO
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. At the formal meeting of the Council for Trade-Related Aspects of Intellectual
Property Rights (TRIPS) on 8-9 June, members also addressed the continued exemption
for least-developed countries (LDCs) from TRIPS obligations,
currently set to expire on 1 July 2021.
In an
extensive discussion with the participation of 48 delegations, members reiterated
their well-known differences on where the emphasis should be placed
to ensure their shared objective of a rapid and effective response to the pandemic.
They expressed their willingness to engage constructively in a discussion based
on two proposals tabled by members, namely the revised proposal for a waiver from
certain provisions of the TRIPS Agreement (IP/C/W/669/Rev1), co-sponsored
by over 60 delegations, and the communication
from the European Union on urgent trade policy responses to the pandemic (IP/C/W/680).
The co-proponents
of the proposal to waive certain TRIPS Agreement obligations detailed the main points
of their revised text. They stressed that the updated proposal takes into account
the existence of virus mutations and new variants which
have a significant impact on public health measures. It also underlines the importance
of diversifying production and supply to increase access to vaccines and other medical
products, and the need to preserve incentives for research and innovation. Co-proponents
responded to concerns regarding the revised provision on the duration and termination
of the waiver, seen by some members as a means to permanently
waive various TRIPS Agreement obligations. They explained that the waiver
would be in force for at least three years from the date of adoption, mandating
the General Council to decide on the date of termination once the exceptional circumstances
end.
Other
members acknowledged the new phase of discussions would require a great deal of
compromise to accommodate all views without losing sight of other elements necessary
for a holistic response to the pandemic, such as addressing tariffs and export restrictions,
trade facilitation and the role the WTO can play as a matchmaker between vaccine
developers and manufacturers. These members agreed that extraordinary circumstances
call for extraordinary and urgent measures and said it is time for the WTO to show
it can step up in a global crisis and act effectively to improve the lives of ordinary
people across the globe.
Several
members expressed their support for the EU's proposal, which calls for limiting
export restrictions, supporting the expansion of 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. While recognizing that intellectual property rights (IPRs) should not
stand in the way of deploying and creating capacity, or of ensuring equitable access
to vaccines and therapeutics, these members stressed that this can be attained while
maintaining IP as the basis for incentivizing investment in innovation, and for
licensing technology transfer, so that members can effectively fight new strains
of COVID-19 and any future diseases and pandemics.
The chair
of the TRIPS Council, Ambassador Dagfinn Sψrli of Norway, expressed his hope that in continuing urgent
and focused discussions on the IP issues relevant to the pandemic, members will
be able to agree on a pragmatic response to the COVID-19 crisis.
Delegations
agreed on the urgent need for this discussion and called on the chair to facilitate
an intensive process in various formats. The chair foresees an intensive schedule
of meetings and consultations, beginning immediately after the TRIPS Council meeting,
echoing the Director-General's remarks that equitable access to medicines for COVID-19
is both the moral and economic issue of our time. The chair intends to consult members
urgently on how the process can be arranged in practical
terms, aiming at agreement on a report to the next General Council meeting scheduled
for 21-22 July. This date presents itself as a natural target date for our efforts,
he noted, warning that members need to be prepared for an intensive process in various
formats which would likely require flexibility and compromise on all sides. Members
will be called to a first informal meeting on 17 June to
assess how textual discussions can move forward and to agree on the needed steps
to be taken leading up to the General Council meeting in July.
In response
to interest from members, the WTO Secretariat presented an initial compilation of
data on the number of production arrangements under which vaccine developers had
contracted vaccine manufacturing to other companies, and on the projected and actual
production of COVID-19 vaccines under such agreements. The chair encouraged a continued
collection and updating of such data to contribute to the TRIPS Council's deliberations.
Interest was also shown in reporting on the evolving patent
landscape for COVID-19 related technologies.
Despite
broad agreement on the principle, consensus eluded members on securing a decision
about a new extension to the transition period for LDC members under Article 66.1 of the TRIPS
Agreement, which is set to expire on 1 July 2021. Since the inception
of the TRIPS Agreement, LDCs have benefitted from an extended transition period
to apply provisions of the TRIPS Agreement, in recognition of their special requirements,
their economic, financial and administrative constraints, and their need for flexibility
in order to create a viable technological base. The transition period has been extended twice (in 2005 and 2013).
The LDC
group's submission in document IP/C/W/668 seeks
to extend the transition period for as long as the member remains categorized as
an LDC, and for an additional period of 12 years from the date of graduation of
a member from the LDC category. All delegations support the extension of the LDC
transition period, but some expressed a preference for extending the period for
a limited number of years, while others were concerned that a transition period
for members that have graduated from LDC status went beyond the TRIPS Council's
mandate under Article 66.1.
Given
the lack of consensus and the immediacy of the expiration date, the chair proposed
to keep this issue open and to reconvene the TRIPS Council in formal mode on 29
June once an agreed decision appeared to be in reach. That may be the last chance
to find a consensus, said the chair, who called on members to show flexibility and
to focus on pragmatic approaches to address the issue before the expiry of the current
transition period.
Following
up on past items on IP and innovation regularly added to the TRIPS Council agenda
since 2012, the co-sponsors Australia, Canada, Chile, the European Union, Japan,
Singapore, Switzerland, Chinese Taipei, the United Kingdom and the United States
summarized the discussions under the 2020 theme of "Making micro, small and
medium-sized enterprises (MSMEs) competitive through IP" (IP/C/W/678/Rev.1).
The submission
highlights examples provided during the discussions and reiterates how MSMEs which play a crucial role in the global economy as key drivers
of innovation, employment, growth, and trade can make effective use of intellectual
property rights (IPRs) to build their businesses. Under this theme, delegations
exchanged experiences related to trademark protection outreach and the use of the
trademark system for MSMEs; the development of IP management strategies for MSMEs,
including combinations of IPRs, such as trade secrets, patents, and industrial designs;
and how MSMEs can leverage IP to innovate, partner, and commercialize green technology.
At the
proposal of Australia, Brazil, Canada, Chile, the European Union, Japan, Singapore,
Switzerland, Chinese Taipei, the United Kingdom and the United States, members also
addressed the topic of "IP and innovation: IP for investment/financing/funding"
(IP/C/W/679). Co-sponsors
invited members to engage in a discussion on how financing affects every stage of
the innovation cycle, from idea creation to commercialization, expansion and long-term
business sustainability. With untapped potential in financing for innovation, innovative
and creative businesses can often find it difficult to use their existing or potential
IP assets to unlock funding, particularly when compared with businesses that hold
more conventional, tangible assets.
In order
to guide this debate, members were asked to share their
experience with businesses and other entities using IP to raise finance internationally.
Also addressed was how TRIPS has influenced the flows of finance between countries,
and what forms of IP-related measures have proven useful and which ones have not
- for the support of small enterprises in their financing/commercialization strategy.
Following
the General Council decision
of 10 December 2019 to extend the moratorium on the initiation of
non-violation and situation complaints under the TRIPS Agreement until the 12th
Ministerial Conference (MC12), scheduled to take place the week of 29 November 2021
in Geneva, members discussed how to approach the mandate to examine scope and modalities
for such complaints and to make a recommendation to MC12.
This
question concerns the longstanding discussion of whether and under what circumstances
members should have the right to bring disputes to the WTO if they consider that
another member's action or a particular situation has deprived them of an expected
benefit under the TRIPS Agreement, even if no specific TRIPS obligation has been
violated.
In a
repetition of previous discussions, some members reiterated their preference for
continuing, or making permanent, the current moratorium. They consider there is
no room for the application of non-violation complaints in the area of IP because
of the legal uncertainty and curtailment of flexibilities that could ensue. Other
delegations favoured ending the moratorium, arguing that
non-violation complaints are key to maintaining a proper balance of rights and obligations
within the TRIPS Agreement while helping to ensure legitimate obligations are not circumvented or avoided. Some members also noted the
political linkage of this item with the related moratorium on customs duties on
electronic transmissions the e-commerce moratorium also to be addressed at MC12.
The chair
noted that there are now six months left before the Ministerial Conference and one
remaining regular formal TRIPS Council meeting (in October) at which members could
formulate concrete suggestions for a recommendation for MC12. Against that background,
the chair encouraged members to engage with each other in the time remaining before
MC12 and to try and find a way out of the deadlock that
has stalled progress on this item for the last two decades.
The chair
reported that, since the last TRIPS Council regular meeting in March 2021, the delegation
of Antigua and Barbuda deposited on 12 May 2021 its instrument of acceptance for
the protocol amending the
TRIPS Agreement.
To date,
133 members have accepted the TRIPS amendment, which entered into force on 23 January
2017, securing for developing countries a legal pathway to access affordable medicines
under WTO rules. The chair encouraged the remaining 31 members to expedite action
in good time before the current deadline for acceptance, which was extended until 31 December 2021.
After
the resumption of the present session on 29 June, the next formal meeting of the
TRIPS Council is currently scheduled for 13-14 October
2021.