Even with a TRIPS waiver, the results are still uncertain – EURACTIV.com

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An agreement at the World Trade Organization (WTO) on a waiver of intellectual property (IP) rights over COVID-19 vaccines and treatments would not have automatic effect as governments would still have to work on its implementation, according to a WTO official.

Due to the many misunderstandings and sensitivity of WTO negotiations, Antony Taubman, Director of the Intellectual Property Division at the WTO Secretariat, chooses his words carefully when speaking to EURACTIV.

As the talks are still ongoing, Taubman cannot speak for the WTO or the negotiating countries, but he could tell us more about the WTO Agreement on Aspects of Intellectual Property Rights Affecting Agreement, also known as the TRIPS Agreement, to put the current waiver negotiations into context.

Since the beginning of May, when all WTO members received the “outcome document” of the Quad – South Africa, India, EU and the United States – intense discussions have continued.

The document laying the groundwork for the ongoing talks is largely identical to an earlier leak, although brackets have been added to some elements, including a confusing footnote on which countries are eligible to use a potential waiver. This sparked discussions on whether China could be considered eligible or should be clearly excluded.

“Brackets in diplomatic terms always mean the text is not agreed,” Taubman confirms.

Only the EU confirmed that it largely agreed with the content of the “outcome document”, while the other three members of the Quad held back, leaving it an orphan.

The Quad talks have been “a difficult process”, Trade Commissioner Valdis Dombrovskis told the European Parliament’s Trade Committee in early May. He believes that the text “offers the most promising path to achieve an outcome between all members” and underlined that “we all had to extend our negotiating mandate to achieve this compromise outcome”.

There are high hopes that the WTO Ministerial Conference will reach a final agreement between all members on June 12-15, but some say not to hold your breath.

A waiver would not automatically have effect

The “outcome document” currently on the table has come under heavy criticism for its lack of resemblance to the original TRIPS waiver proposal submitted jointly by India and South Africa in October 2020. , which was significantly more ambitious.

That being said, even a waiver such as the original proposal would not immediately suspend intellectual property rights as it is not a power within the WTO.

This would give governments a wider range of options to take action at the national level, which means they would have to work together to make a TRIPS waiver agreement have a real impact.

“There hasn’t been much discussion about what governments would want to do specifically under the broader TRIPS waiver – whether they would somehow want to repeal the legislation or pass a legislation suspending certain identified intellectual property rights and not others, or other specific emergency measures under national law,” Taubman said in reference to the October proposal.

“I don’t mean to sound like a skeptic at all, but it’s just not easy. It does not happen automatically,” he added.

If there are barriers related to intellectual property rights, they should be in national laws, according to Taubman.

“It cannot be the agreement itself that poses direct obstacles, because it is an international treaty and not a system of national intellectual property law,” he continued. , adding that it does not in itself exempt from intellectual property rights.

Taubman explained that the eventual agreement is more of a common framework of agreed principles, which means that real intellectual property barriers can only arise in individual jurisdictions and countries.

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Existing Options for a TRIPS Agreement

Some existing TRIPS agreements already provide countries with options to override intellectual property rights called “compulsory licensing”. This allows governments to allow a competitor to produce a product without the owner’s consent.

While compulsory licenses were originally only intended for internal use in domestic markets, an amendment to the TRIPS Agreement, which entered into force in 2017, introduced the possibility of granting compulsory licenses for the export.

“What can be used is something like an emergency use order, basically where a minister of health could say: there is a pandemic, so this company is now authorized to produce 100 million doses of a certain vaccine,” Taubman said.

In these circumstances, the patentee would normally be entitled to claim compensation.

“It’s like the government deciding to run a railway through my yard: they can do it, but I can claim compensation,” Tauban explained in an analogy, pointing out that in this case, the holder of the intellectual property keeps its patent intact. while compensation is simply for the use of technology in the public interest.

In theory a good idea, but in practice governments have problems.

“An obstacle that has been repeatedly cited in the debate is that the existing national compulsory licensing mechanisms are too narrow, restrictive and bureaucratic. Governments have asked for something else that is better suited to an emergency,” Taubman continued.

Indeed, when Bolivia notified the WTO of its need to import 15 million COVID-19 vaccines through compulsory licensing in May 2021, not much happened. Bolivia reached an agreement with Canadian Biolyse Pharma to seek a compulsory export license from the Canadian government, but this failed.

One of the fears of governments could be that if they give up patents for COVID-19 vaccines and treatments, it could create problems with pharmaceutical companies who rely on themselves for a regular supply.

The “outcome document” on the table now aims to open the deal up to supply multilateral initiatives such as COVAX and remove the criticized notification requirements attached to let the WTO know you need vaccines. It does not remove patent holders’ right to compensation and focuses only on vaccines and – for now – not on therapeutics.

Simultaneously, COVAX recently said it has access to “enough COVID-19 vaccines to help protect 70% of the population in 91 low-income countries” but is struggling with demand and uptake in those countries, calling for action. to “ensure that countries have the resources to accelerate and scale up national strategies.

[Edited by Gerardo Fortuna/Alice Taylor]

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