WTO Members Stress Role of IP System in Fighting
COVID-19
·
IP
measures in the context of COVID-19
·
Technology
transfer to LDCs
·
Work
Programme on e-commerce
·
IP
and the public interest
·
Non-violation
and situation complaints
·
Trilateral
study
·
TRIPS
amendment
At the meeting of the Council for Trade-Related Aspects of
Intellectual Property Rights (TRIPS) on 30 July 2020, WTO members highlighted
the merit of the multilateral intellectual property (IP) system in
incentivizing innovation in medical technologies and research and in enhancing
the response of the global community to the COVID-19 pandemic. WTO members also
discussed new proposals on the transfer of technology to least-developed
countries (LDCs) and electronic commerce. They elected Ambassador Xolelwa Mlumbi-Peter of South
Africa as the new chair.
At
the request of South Africa, WTO members engaged in a discussion on the
important role the WTO - and the TRIPS Council in particular - play in
combatting the COVID-19 pandemic.
Developing
and least-developed country members highlighted the challenges COVID-19 has
presented in terms of access to medicines, vaccines and associated
technologies. They called for the TRIPS provisions to be applied with a focus
on the rights to protect public health and promote access to medicines for all.
These delegations said the TRIPS Council must ensure that vaccines and new
medical technologies are made accessible and available regardless of the level
of economic development and that intellectual property rights (IPRs) are not a
barrier to access. In their view, the COVID-19 crisis allows for the
utilization of TRIPS flexibilities contained in the Doha Declaration on
TRIPS and Public Health. They said the crisis calls for the
removal of complexities in the TRIPS Agreement to improve the Declaration's
effectiveness and to ensure benefits for members without domestic
pharmaceutical manufacturing capacity.
Developed
country members said that during the crisis the IP system had demonstrated its
value in boosting scientific and international cooperation against the
pandemic, and in promoting and incentivizing medical technologies innovation
and research. The TRIPS Agreement, these members said, is the right tool to
strike the right balance between innovation and safeguarding public health,
including access to affordable medicines for all. The production of
high-quality COVID-19 medicines and treatments has been possible based on a
system that promotes collaboration and voluntary knowledge-sharing and
licensing, while ensuring IPRs are respected, they said.
Members
agreed on the relevance of the TRIPS Council as a forum for exchanging
information, promoting cooperation and coordinating strategies at the
multilateral level to respond effectively to the crisis. However, there was no
agreement in including the issue of the COVID-19 response as a standing item on
the agenda of future TRIPS Council meetings. Some members expressed their
preference to include it on an "ad-hoc" basis in light of further
developments.
Several
members explained in detail some of the IP-related measures implemented in
response to the pandemic. They thanked the WTO Secretariat for its efforts in
compiling and updating the list of members' COVID-19 IP-related measures on the
WTO website. This non-exhaustive list has
been compiled by the WTO Secretariat from official sources. It represents an
informal situation report and an attempt to provide transparency with respect
to measures taken. The chair encouraged members to promptly provide updated
information on these and other measures as appropriate, including through
notifications to the TRIPS Council.
On
behalf of the LDC Group, Chad submitted a document (IP/C/W/664) proposing
a new template for annual reporting on technology transfer to LDCs under Article 66.2 of the
TRIPS Agreement. This article calls on developed
countries to provide incentives to enterprises and institutions in their
territories for the purpose of promoting and encouraging technology transfer to
LDCs to help them create a sound and viable technological base.
The
proposed template aims at simplifying the reporting process, synchronizing the
current reporting variations, and providing precise evidence of the substantive
contributions of developed country members. It is the view of the LDC Group
that while some members have made efforts, the implementation of Article 66.2
continues to fall short of the letter and spirit of the TRIPS Agreement
mandate. They noted that some reports submitted by developed country members
continue to lack clarity on the nature of incentives and whether such
incentives result in sufficient technology transfer to LDCs.
Some
developed members claimed that it is difficult for governments to ensure
technology transfer because technology is the subject of private contracts and
rights. However, they expressed their willingness to discuss the new proposed
template and to engage in constructive dialogue to improve the system.
In
connection with Article 66.2, the chair announced that the WTO Secretariat is
planning the 13th Workshop on Technology Transfer. This workshop is planned
once again to be held back-to-back with the Council's meeting in February 2021.
South
Africa submitted a communication (IP/C/W/665)
which calls for reinvigorating the 1998 Work Programme on Electronic Commerce in
line with the General Council Decision of December 2019 and inscribing this
issue as a standing item on the agenda of the TRIPS Council. South Africa said
this would facilitate a deeper discussion of issues that could be based on a
catalogue of themes previously agreed by members.
South
Africa stressed that IP can have an impact on development so the link between
IP and development, as well as the relationship with the various Sustainable
Development Goals (SDGs), needs to be mainstreamed into the discussion of the
TRIPS Council. For example, the rapid deployment of smart devices and digital
interfaces to 3D printing, wearables, automation, robotics and cloud computing
are all contributions to a notable digitisation of
the world economy, a trend which has been accelerated by COVID-19. In this
context, said South Africa, the digital divide impedes the participation of
developing countries in digital value chains while digital transformation is
disrupting traditional sectors with severe socio-economic consequences.
Members
recognized the value of this proposal and supported the initiative to reinvigorate
the Work Programme but some delegations opposed
including it as a standing item in the Council agenda. The Council has never
stopped working on this issue and nothing prevents members from raising it when
necessary, these delegations said.
Following
up on past items on the intersection between IP and the public interest, South
Africa proposed to address the topic of "Beyond access to medicines and
medical technologies – towards a more holistic approach to TRIPS flexibilities"
(IP/C/W/666).
South Africa stressed that the use of TRIPS flexibilities to address a public
health concern is usually seen as a matter concerning patents. However, in the
context of the COVID-19 pandemic, it said this requires a more integrated
approach that includes other types of IPRs, including copyright, industrial
designs and trade secrets.
South
Africa said the use of TRIPS flexibilities in other IP areas, beyond patents,
is less understood at the national level. It stressed that the flexibilities
may not be sufficient to address issues of access, particularly in the case of
countries that have never utilized tools such as compulsory licences.
South Africa highlighted the recent solidarity call to action by a group of
World Health Organization (WHO) members to realize equitable global access to
COVID-19 health technologies, through pooling of knowledge, IP and data. It
noted, however, that limited, exclusive and often non-transparent voluntary
licensing is the preferred approach of pharmaceutical companies. This is
insufficient to address the needs of the current pandemic, it added.
Several
developing countries joined South Africa in explaining the legal, technical and
institutional challenges they face in using TRIPS flexibilities. They
highlighted the lack of domestic manufacturing capacity that makes them
dependent on imports to meet their medical needs, particularly in times of
crises. Goods and services that are needed to tackle the COVID-19 pandemic
include protective equipment such as masks, face shields and hand sanitizers.
These products remain in critical shortage in many countries, these members
said.
Developed
countries urged other members to exercise caution and careful deliberation on
issues related to compulsory licensing. They said these issues have significant
implications that could negatively affect investment in, and research and
development of, future treatments. They could also discourage investment into
new markets, including investment in new manufacturing facilities, they said.
These members noted that facilitating incentives for innovation and competition
to develop, test and produce safe and effective therapeutics and vaccines, or
other relevant products for the COVID-19 response will best achieve the shared
objective of fighting the pandemic. This would include respecting IP rights and
supporting industry-led collaboration and voluntary knowledge-sharing. .
Developed
countries also indicated that voluntary pooling of rights and other voluntary
licensing arrangements have provided for safe and effective diagnostics
medicines and vaccines for the COVID-19 response. These measures have also
scaled up the production of medicines and vaccines. In this context, the TRIPS
Agreement already provides various avenues to address potential IP matters in
the case of health emergencies should voluntary mechanisms fail, not only with
regard to patents but also with regard to IP rights. Moreover, many right
holders have voluntarily pledged or given access to IP in this crisis by
facilitating access to key scientific journals or open source designs for
personal protective equipment or design specifications for ventilators, they
added.
Under
this item, the World Health Organization (WHO) updated
members on the COVID-19 Technology
Access Pool (C-TAP). This compiles in one place pledges of
commitments made under the Solidarity Call to Action to voluntarily share
COVID-19 health technology-related knowledge, IP and data. The platform is
intended to provide equitable access to life-saving technologies by promoting,
through voluntary means, open innovation models and technology transfer, the
WHO representative said. The platform also promotes equitable global access to
fast-track product development and mobilizing efficient manufacturing capacity.
Members
reiterated their well-known positions on the issue of non-violation and
situation complaints. The issue concerns the longstanding discussion of whether
members should have the right to bring dispute cases to the WTO if they
consider that another member's action or a specific situation has deprived them
of an expected benefit under the TRIPS Agreement, even if no specific TRIPS
obligation has been violated.
Some
members reiterated they favour continuing, or making
permanent, the current moratorium. There is no place, in their view, for the
application of non-violation complaints in the area of IP because of the legal
insecurity and curtailment of flexibilities that could ensue. Other delegations
expressed their preference for ending the moratorium. This is on the grounds
that non-violation complaints are essential to maintaining the proper balance
of rights and obligations within the TRIPS Agreement while helping to ensure
that legitimate obligations are not circumvented or avoided.
All
delegations expressed their willingness to consider concrete proposals. They
underlined their availability to engage in a meaningful examination of this
issue, following the decision by the General Council on 10 December 2019 to
extend the moratorium until the 12th Ministerial Conference (MC12), tentatively
to take place in Nur-sultan, Kazakhstan, in June
2021.
"It
is my impression that a number of shared understandings regarding TRIPS
non-violation could in fact be harvested from the past discussions. This might
enable us to focus our engagement on formulating the areas of disagreement –
and thus make at least some progress in framing the questions for ministers at
MC12," Ambassador Mlumbi-Peter said.
The
WTO Secretariat reported to members on the WHO-WIPO-WTO launch on 29 July of
the second edition of the Trilateral Study on
Access to Medical Technologies and Innovation. Encouraged by the
strong and positive feedback the study has received since its initial launch in
2013, the second edition will further contribute to an informed policy debate
about what is needed to foster innovation that is responsive to pressing needs
and to secure equitable access to essential medical technologies.
The
chair reported that, since the last TRIPS Council meeting in February 2020,
Niger and Barbados had deposited their instrument of acceptance for the protocol
amending the TRIPS Agreement. To date, 131 members have
accepted the TRIPS Amendment, which entered into force on 23 January 2017. The
amendment secures for developing countries the legal pathway to access
affordable medicines under WTO rules. The period for acceptance of the protocol
was extended until 31 December 2021 by the General Council in December 2019.