WTO IP Waiver ‘Compromise’ on COVID-19 Vaccines ‘Deeply Concerning’: Civil Society to European Leaders
A man at a protest in Geneva to demand the TRIPS waiver.

A compromise proposal on a World Trade Organisation’s (WTO) waiver on intellectual property for the production of COVID-19 vaccines is ‘problematic’, ‘largely insufficient’, and WTO members should not be politically pressured into adopting the  text, several dozen civil society organisations said in an open letter published today. 

The letter, addressed to European Commissioners, European members of Parliament, and WTO Ambassadors, and signed by 42 European and International civil society organisations, called on the European Union and WTO Director General Dr Ngozi Okonjo-Iweala to “refrain from rushing WTO members” to rapidly adopt what the civil society groups termed as an “unsound proposal”.  

The draft compromise text, was brokered in mid-March with United States support between the European Union, which had until then opposed any IP waiver at all for COVID health products, and the initiative’s sponsors, India and South Africa – referred to in some quarters as “the Quad”.  However, the draft agreement still needs to be put to all 164 WTO members, which typically decide by consensus. 

To make the compromise possible, South Africa and India had to make major concessions in narrowing the waiver to only vaccines, as well as narrowing the list of countries that would be eligible to take advantage of the waiver on patents and other IP.

In their letter, the civil society critics charged that “The text under consideration by some WTO members contains problematic and contradictory elements (see Annex) and remains largely
insufficient as an effective pandemic response.

Exclusion of therapeutics and burdensome requirements among the complaints

The main innovation of the proposed waiver is that most low- and middle-income countries that decide to produce their own generic versions of vaccines would be also allowed to export their products to other low- and middle-income countries in deed – providing that the country historically produces less than 10% of the global COVID vaccine supply – effectively excluding China from the waiver provisions.  Bulky and complex requirements around export of generic products are a key complaint of the current WTO Agreement on Trade Related Intellectual Property (TRIPS).

Among the main civil soceity complaints about the new agreement, detailed further in an annex, are the exclusion of COVID diagnostics and treatments from the IP waiver.  Those products, proponents say, are even more critical now in the battle by low- and middle-income countries against the pandemic in light of the comparatively higher costs of such drugs and lower vaccination rates.

Critics also say that the compromise would require new “burdensome, unecessary, TRIPS-plus requirements for countries seeking to issue a compulsory license” for the generic production of a vaccine – in terms of notification procedures.

While patents are part of the waiver, “the draft text also does not address barriers arising from confidential information/trade secrets held by corporations or contained in documentation submitted to regulatory authorities,” the critics say.

“And eligibility requirements still exclude too many low- and middle-income countries from either “producing, supplying, export and importing” even vaccines, they add.

Ultimately, the measures create “more legal uncertainty compared to the existing TRIPS flexibilities due to textual ambiguity and a confusing structure,” the critics further charge.

Final decision set for June

A final decision on the IP waiver is expected is to be taken at the 12th WTO Ministerial Conference, now set to take place during the week of 13 June in Geneva. 

But until then, the civil society groups said that there is a need for “further negotiations are needed to ensure an effective outcome in a multilateral manner.

“Throughout the COVID-19 pandemic, the EU has repeatedly ignored evidence of the effects of restrictive licensing practices on access to COVID-19 medical tools and resisted meaningful negotiations on a proposal for a temporary TRIPS waiver at the WTO to address limited production and shortage of supply,” the letter said. 

The critics charge that the terms of the waiver, as stated now, would also cast legal doubts around the work of the mRNA tech-transfer up recently set up by WHO in South Africa, and which the European Commission has suported.  The mRNA hub recently announced that scientists there had duplicated the Moderna version of a COVID vaccine.

“We find it hard to comprehend how the EU would endorse a so-called compromise that could hamper the functioning of the mRNA tech-transfer hub that the European Commission and some Member States strongly support. It’s hard to see countries in the Global South believing in the promise of equity that the European Council assures guides its push for a pandemic preparedness treaty,” Health Action International Senior Policy Advisor Jaume Vidal said in a press release.

The current compromise reached, however, now has good chances of being approved by consensus insofar as EU countries have been the major opponents to the proposal by South Africa and India, submitted in October 2020.  The original proposal called for a blanket waiver on all IP related to COVID-19 vaccines and other pandemic-related health products for the duration of the pandemic. 

According to organisations, including Amnesty International, Human Rights Watch, Oxfam, the People’s Vaccine Alliance and others that signed the letter today, the compromise text is a “reiteration of existing TRIPS flexibilities with a narrow export waiver and additional cumbersome requirements” and that a large number of WTO members whom these proposals affect were not a part of the negotiations. 

Image Credits: Aishwarya Tendolkar.

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