The proposal (IP/C/W/669) was initially submitted by South Africa and India and has since been co-sponsored by Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group, the Least Developed Countries (LDC) Group, and most recently Maldives, Fiji and Namibia — a total of 60 WTO members.
The document calls for a waiver for all WTO members of certain provisions of the TRIPS Agreement in relation to the “prevention, containment or treatment” of COVID-19. According to the proponents, the objective is to avoid barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing, and supply of essential medical products.
The waiver would cover obligations in four sections of the TRIPS Agreement — Section 1 on copyright and related rights, Section 4 on industrial designs, Section 5 on patents and Section 7 on the protection of undisclosed information. It would last for a specific number of years, to be agreed by the General Council, or until widespread vaccination is in place globally and the majority of the world's population is immune. Members would review the waiver annually until termination.
Co-sponsors said they are engaging with other members to receive feedback on possible changes to the proposal with the objective of advancing the discussion. They would then discuss and finalize a revised text with a view to circulating it in May. They requested the chair of the TRIPS Council, Ambassador Dagfinn Sørli of Norway, to consider holding a meeting open to all members in the second half of May to discuss the revised proposal before the formal TRIPS Council meeting scheduled for early June. The chair noted there is reason for some careful optimism after the latest exchanges.
The exchanges among members indicated they remain divided on the fundamental discussion about the impact of IP protection in ensuring rapid and safe access to vaccines and other medical products. Co-sponsors were of the view that the current challenges posed by the pandemic can only be effectively addressed by waiving certain TRIPS obligations. A number of delegations remained unconvinced about the necessity for a waiver at the international level, with some members arguing that a waiver might be counterproductive and undermine ongoing collaborative efforts.
Members also reiterated known positions regarding the role of voluntary licensing in scaling up production of vaccines, and the application of existing TRIPS flexibilities in domestic situations of vaccine shortages in the pandemic. The co-sponsors reiterated their suggestion of engaging in text-based discussions. This was not supported by members opposing the IP waiver.
A number of delegations also requested the WTO Secretariat to compile data on existing and future voluntary licence agreements, and on the projected and actual production of vaccine doses produced by such arrangements over time. As a matter of priority, the Secretariat will engage in internal consultation to assess what reliable data sources are available and what could be provided to members regarding enhanced production and agreements for the production of vaccines.
The chair said that although significant differences remain, there is willingness on all sides to find a constructive consensual approach to the various questions raised as part of this discussion. He added that without a minimum of common understanding of the nature of the challenge, it is difficult to see how a consensual approach to the waiver request could be established.
LDC transition period
Under other business, the chair reported on his consultations on the request by the LDCs Group (IP/C/W/668) to once again extend the transition period for LDC members under Article 66.1 of the TRIPS Agreement. Under this provision, LDCs are given an extended transition period to apply provisions of the TRIPS Agreement in recognition of their special requirements, their economic, financial and administrative constraints, and their need for flexibility in order to create a viable technological base. The transition period has been extended twice and is currently set to expire on 1 July 2021.
The aim of these consultations is to help secure a decision on the extension of the LDC transition period at the meeting of the TRIPS Council in early June. The chair noted the goodwill demonstrated by delegations in this regard and said he was hopeful this process will continue to progress smoothly going forward.
At the previous formal TRIPS Council meeting on 11 March, some members expressed full support for the extension as requested (for as long as the member remains in the category of LDCs and for a period of 12 years from the date of entry into force of a decision by the United Nations General Assembly to exclude the member from that category). Other members expressed a preference for extending the period for a limited number of years, while others had additional questions on how the request for a transition period for countries that have graduated from LDC status related to Article 66.1.