Guest article Jaume Vidal, Senior Policy Advisor at Health Action International (HAI)
In October 2020 in the midst of the COVID-19 pandemic, South Africa and India submitted a proposal to waiver certain dispositions of the Trade- Related aspects of Intellectual Property (TRIPS), one of the foundational treaties of the World Trade Organisation (WTO) and, as such, a cornerstone of global trade rules.
The move was welcomed by developing countries and civil society but vigorously opposed by the European Union, Switzerland and the United Kingdom as well as pharmaceutical industry representatives. It also highlighted simmering tensions between intellectual property protection requirements and health needs which predated the pandemic and were exacerbated by the difficulties experienced by governments in the Global South to secure access to critical health goods, from Personal Protection Equipment to vaccines, passing by diagnostics and therapeutics.
For 18 months, and despite the calls from elected officials, academics, scientific researchers and experts and the formal endorsement of over 60 governments, opponents to the waiver refused to engage in a meaningful dialogue while filibustering at WTO TRIPS Council. Only with the 12th Ministerial Conference looming was a proposal, reflecting mostly the EU position and with TRIPS+ clauses, put forward and subsequently accepted as negotiating text which ended up as a Ministerial Decision on the TRIPS agreement.
The outcome was far from the comprehensive waiver that was originally proposed by South Africa and India, falling short from the bold response to the pandemic that many had hoped for. It did however highlight several facts that need to be acknowledged as will likely shape not only the response to health emergencies in the future but also how governments and other actors attempt to amend, reform, or replace existing legal and institutional frameworks:
- Unresolved issues. There is still no sustainable compromise to allow countries with no pharmaceutical manufacturing capabilities to make use of TRIPS flexibilities; also, technology transfer by patent holders as provided in the TRIPS agreement is not being pursued as energetically as IP enforcement in Low and Middle Income countries (LMIC). The issue of intellectual property rights as obstacles to manufacturing and access to health technologies remains in the public agenda.
- Untapped potential. The mobilization for the waiver has transcended traditional boundaries and constituencies involving actors and stakeholders not previously involved in the access to medicines movement; transnational alliances have been formed and global ad-hoc coalitions sprung up, these networks will keep on collaborating to improve access to health technologies working at national, regional and global levels. Global South organisations and grassroots movement will remain important elements in upcoming advocacy efforts.
- The next chapter. The TRIPS waiver proposal was part of a larger conversation on the place and role of IP in general, and the TRIPS agreement in particular, on access to health technologies; This discussion will be taken up in different forums and instances in coming months including: national debates around patent law (including patent oppositions), response by the European Parliament and European Union Council to the European Commission proposals on pharmaceutical legislation and consolidation of the European Health Emergency Preparedness and Response Authority (HERA) and deliberations at the Intergovernmental Negotiating Body (INB) to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response. Access and innovation need to be linked through equity, transparency and inclusion.
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