Technical Fixes or Sweeping Reform? Europe and Developing Countries Face Uphill Battle to Etch Consensus on IP Waiver
Civil society advocates around the world rally in early June to support a WTO waiver on IP rights associated with COVID tests, treatments and vaccines.

Proponents of a sweeping World Trade Organization ‘waiver’ on intellectual property rights for all COVID-19 treatments, tests and vaccines face an uphill battle to reach consensus on a text ahead of a WTO General Council meeting scheduled for 27-28 July. 

This is despite the recent agreement of the initiative’s opponents, including the European Union, Korea, Switzerland and the United Kingdom, to launch “text-based discussions”.

But according to the EU, those negotiations should also include elements covered by its own counter proposal submitted in early June.  

That was the EU position at the first “informal” meeting of the WTO’s TRIPS Council since countries reached agreement on 9 June to enter a “text-based process” on the IP waiver proposal – a move waiver advocates hailed as a breakthrough

As the next stage,TRIPS Council members are staging a series of informal and formal talks – expected to last for at least the next six weeks.  

European Union – More ‘Targeted’ Approach

The EU proposal focuses on some highly technical, but potentially significant, changes in the the existing rules around the WTO’s  Agreement on Trade-Related Aspects of Intellectual Property Rights (​TRIPS). 

The proposed changes in the highly-technical set of rules, EU proponents say, would make it faster, easier and cheaper for countries to issue compulsory licenses for the manufacture of much-needed COVID drugs and vaccines both domestically and for export to other countries lacking such manufacturing capacity by:

  • Waiving requirements that the manufacturing country first negotiate with the IP/patent rights holder before issuing a compulsory license;
  • Setting out principles Fixing standard rates of “adequate remuneration” to the IP rights holders for health products produced under a compulsory license;
  • Reducing now complex requirements around detailed notification to the WTO of products being exported and where  – which can delay their implementation;

The EU proponents claim that a “more targeted approach” to WTO rule changes would make the existing TRIPS flexibilities more fit to the purposes of the pandemic  – precluding the need for a blanket IP waiver. 

Along with the rule changes, other elements of the initiative, yet to be refined further, would support expanded production, while curbing the power of countries to impose export restrictions on raw materials needed for health products. 

The EU proposal comes in response to a much more sweeping waiver of all forms of IP, championed by India and South Africa, and supported by 61 other countries. 

South African and Indian Delegations – Discuss Scope of Waiver and Products Covered

At the informal talks on Thursday, the South African and Indian delegations said that the starting point for the negotiations should not be revisions to existing TRIPS formulas, but rather the “product” and “IP” scope of the waiver proposal that they have co-sponsored, Geneva-based trade officials attending the meeting observed.  

Waiver advocates meanwhile, are already beginning to mount the next stage of a campaign – this time targeting the new EU proposal – with Médecins Sans Frontières calling it an “insufficient solution in a pandemic”. 

Among the objections are the fact that the proposal only refers to vaccines and treatments – but not COVID tests or other health tools that may be essential to fighting the pandemic.  

The proposal also focuses only on patent obligations, whereas the waiver would go further – waiving rights on copyright, trade secrets and other kinds of IP-related knowledge, MSF said.   

And despite the streamlining of compulsory license rules that the EU has proposed,  MSF contended that even bigger changes would be needed “to make existing rules on compulsory licenses effective.” 

“Compulsory licenses come with unnecessary delays and complications when it comes to exporting medical tools, such as strict requirements for the packaging and colour of the products,” MSF said in its latest position statement. “The EU’s counter-proposal does nothing to address these issues, which means it falls short of the flexibility that a global crisis of this urgency demands.”  

United States: Focus On Common Objectives

The United States, in Thursday’s talks, said that rather than focusing on the “scope” of a proposed waiver, they would prefer to focus on “common objectives” – around which broader agreement might be reached.  

US officials also reportedly stressed that they could not accept the WTO General Council meeting on 27-28 July as a hard end-date for the negotiations – stressing that any outcome still has to be reached by consensus.  

The United States, in May, came out in support of a waiver on IP associated with COVID vaccines, but not medicines or tests.  The position, set by new President Joe Biden, appears to be picking up steam more broadly, including among mainstream groups such as the American Medical Association, which voted at an annual meeting this week to support the waiver proposal.  

The United Kingdom delegation at the WTO meeting, meanwhile, stressed that initial discussions over the course of the month should address the question of how a waiver – if agreed – would rapidly increase the supply of COVID-19 goods?

Switzerland, as well, has taken a strong position against a blanket WTO waiver on IP, following the lead of its large pharma industry.

“The fact that, since the outbreak of the pandemic, several vaccines against COVID-19 have been developed, industrially produced and authorised in record time impressively demonstrates that this incentive system anchored in the TRIPS Agreement also works during a pandemic,” stated the Swiss Patent Office, (IPI) in a statement. 

Switzerland is therefore convinced that suspending the established international legal framework would be the wrong approach. Ïf the TRIPS Agreement were suspended, the WTO rules, which have been in force for over 25 years and accepted by 164 states, would no longer apply. Switzerland is convinced that established international rules provide an important basis, especially when dealing with a crisis.” 




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