The report will provide a neutral and factual account of discussions held at the TRIPS Council since India and South Africa first introduced on 15-16 October 2020 document IP/C/W/669, requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19. The proposal has since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group, the Least Developed Countries Group, the Maldives, Fiji, Namibia, Vanuatu, Indonesia and Jordan.
Over the last nine months, members have discussed the waiver request in various formal and informal TRIPS Council meetings, exchanging views, asking questions, seeking clarifications and providing replies and information. In a bid to reconcile positions, co-sponsors issued a revised proposal (IP/C/W/669/Rev.1), which was introduced at a formal TRIPS Council meeting on 8-9 June. At that meeting, members moved closer to a text-based process to address the proposals put forward by delegations aimed at improving the international response to COVID-19 and achieving the common goal of providing global equitable access to vaccines and other medical products.
Following the agreement to engage in a text-based process, discussions continued in small-group consultations, at informal open-ended meetings on 17 and 30 June, and on 6 and 14 July, where members also discussed a proposal for a draft General Council declaration on the TRIPS Agreement and Public Health in the circumstances of a pandemic (IP/C/W/681), issued by the European Union on 21 June. The EU proposal calls for limiting export restrictions, supporting the expansion of vaccine production, and facilitating the use of current compulsory licensing provisions in the TRIPS Agreement, particularly by clarifying that the requirement to negotiate with the right holder of the vaccine patent does not apply in urgent situations such as a pandemic, among other issues.
The two texts discussed in the TRIPS Council reflect that positions remain divergent. While delegations remain committed to the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all, disagreement persisted on the fundamental question of what is the appropriate and most effective way to address the shortage and inequitable access to vaccines and other COVID-related products.
In the context of the text-based process, the chair of the TRIPS Council, Ambassador Dagfinn Sørli of Norway, reported on the discussions held by delegations on the topics of “scope”, both from the perspective of products and of IP rights, on “duration”, “implementation” and “protection of undisclosed information”. Delegations engaged positively and their detailed substantive exchanges helped clarify various aspects and nuances of positions.
Co-sponsors explained at those discussions the proposed scope of the revised waiver request by illustrating the range of products and processes, as well as the sections of the TRIPS Agreement they consider relevant to fight COVID-19. On the duration of the proposed waiver, discussions contributed to clarifying the intended operation of the termination clause in the revised waiver proposal, as well as the relationship between the annual review suggested and the foreseen duration of the waiver (at least three years from the date of its adoption).
In the area of implementation, discussions focused on a number of specific questions, including transparency and provisions to limit the long-term impact of disclosure of confidential data during the waiver period. Delegations also reflected on what steps will be needed at the domestic level. In the area of regulatory data, only a few exchanges could take place, as there was not enough time available, suggesting that members may come back to this issue at a later stage.
The chair of the Council stressed discussions in the small group sessions were interactive and detailed, reflecting genuine engagement and helping further illuminate a number of substantive points. At the same time, delegations indicated their willingness to continue discussions and identified several topics that might merit focused discussions going forward.
Unable to complete the consideration of the revised waiver request, the TRIPS Council will therefore continue discussions, including through small-group consultations and informal open-ended meetings, and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement. The TRIPS Council also agreed to continue in the same manner the consideration of the other related proposals by members.
As per WTO rules, waivers concerning WTO agreements must be submitted initially to the relevant Council which has 90 days to submit a report to the Ministerial Conference or to the General Council. Given that this proposal was initially submitted on 2 October, the 90-day time-period expired on 31 December 2020 and subsequent General Councils have endorsed the TRIPS Council decision to continue consideration of the proposal.
The chair announced his intention to invite delegations for an open-ended informal meeting of the TRIPS Council in early September to touch base on the state of play. The next formal meeting of the Council is scheduled for 13-14 October, but the chair stressed the possibility of convening a formal meeting ahead of that date if required.