Discussions over a controversial World Trade Organization waiver on intellectual property related to COVID vaccines, treatments and other tools, have become more “constructive” said a senior WTO spokesman on Thursday, in a press briefing on the first day of the WTO’s two-day General Council meeting. 

There has been a “subtle shifting in the direction of compromise from both sides,” said WTO chief spokesman Keith Rockwell, holding out hope of a possible agreement on the bitterly disputed initiative in time for the WTO’s big Ministerial Council meeting (MC12), November 30-12 December.

A waiver on intellectual property rights, enshrined in WTO’s TRIPS agreement, was first proposed by South Africa and India last year, as a way to expedite manufacture of desperately-needed COVID health products in lower-income countries that have lacked both capacity to make their own COVID vaccines and therapeutics, as well as purchasing power to acquire patented versions.  

But the initiative has also seen stiff opposition from developed countries, led by Germany and other EU nations, which contend that it could harm, rather than help, fledgling initiatives already underway to expand manufacturing capacity – and locate more of that capacity in low- and middle-income countries. 

The TRIPS waiver initiative is now co-sponsored directly by some 18 low- and middle-income countries along with dozens more nations affiliated with the WTO “African Group” as well as the “Least Developed Country (LDC) Group”.  

Today’s more positive tone at the WTO General Council followed on an announcement by Moderna, one of the world’s two top manufacturers of the newest, and most successful mRNA COVID vaccines, that it would invest in a state-of the-art mRNA vaccine facility in Africa capable of producing up to 500 million doses a year. (see related HPW story). 

In terms of ambition, the Moderna initiative well outpaces that of Pfizer, the world’s other mRNA vaccine powerhouse to jumpstart more vaccine manufacturing on the continent.  In July, Pfizer announced a partnership with South Africa’s Biovac, whereby the South African firm would perform the “fill and finish” for up to 100 million Pfizer vaccines, beginning next year.   

Two-pronged approach in WTO to COVID crisis 

While Rockwell did not cite any concrete points where progress on the waiver talks had been made, he said that the tone of discussions had changed significantly over the past two months. 

“While there is not an agreement on this, and I don’t want to overstate this, or be overly optimistic, I think it’s fair to say that the tone of the discussion was really quite constructive,” Rockwell stated. 

“There were very few highly politically charged interventions; a number of important delegations said that they were ready to look at any proposals that addressed all the concerns –  the issues here are ones with which you’ll be familiar,” Rockwell observed. 

Those issues include high-income countries assertions that IP protections reward innovation, and have been key to the rapid development of COVID vaccines, as well as more specific objections to: “scope of the waiver, including products, and the specific intellectual property elements, considered, and the duration. And the protection of undisclosed information.” 

In its current formulation, the waiver be for an initial period of three years, subject to further review. It would remove not only the existing WTO TRIPS patent protections on COVID health products, but also protections on copyright, trade secrets and other types of IP.   

“Now, I don’t want to oversell this, but the tone was really quite different…” Rockwell said. “I think there is certainly an understanding of how important his issue is, and how short time is for us to be able to come to an agreement.”

Rockwell also stressed that in addition to the highly legalistic negotiations over the IP waiver initiative, New Zealand’s WTO Ambassador, David Walker, is leading a parallel process on so-called “non-TRIPS” interventions that the WTO could take. 

This process, launched in June by General Council Chair Dacio Castillo, of Honduras, puts Walker in charge of finding a “multilateral and horizontal response to the COVID-19 pandemic.”

Walker, a former General Council chair himself, has been leading  discussions among members on how other WTO responses, could help facilitate trade in COVID health products and remove export restrictions which slow the international movement of vital goods. 

The process, which is “complimentary” to the TRIPS negotiations, could lead to an outcome document at MC12, Rockwell said, with both “broad political messages” as well as proposal for concrete decisions on WTO rules or regulations that could that includes both political declarations as well as proposals for concrete WTO decisions – to relieve export restrictions; foster greater regulatory coherence; and increase cooperation on issues such as tariffs that may impede access to essential medical products. 

“He [Walker] said that with respect to export restrictions, a large number of members had attached a very high priority to this; they said it’s been disruptive, these export restrictions, to global value chains and have made it difficult to ramp up productions,” Rockwell stated. 

Further work to unlock such bottlenecks could also be part of a “post-MC 12 Work Program, on trade facilitation, regulatory coherence and tariffs.” 

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