India and South Africa have now submitted a proposal (dated 2 October 2020) to the WTO’s TRIPS Council requesting for the waiver of Sections 1 (Copyright), 4 (Industrial Designs), 5 (patents), and 7 (undisclosed information) of Part II of the TRIPS Agreement in relation to the prevention, containment, and treatment of COVID-19. The waiver would suspend the obligations of WTO Members (presumably, this includes developed, developing, and least-developed countries) to implement, apply, or enforce these Sections of the TRIPS Agreement. They want this waiver to ‘continue until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.’ This is an ambitious proposal to say the least.
This proposal overcomes the shortcomings of the Article 31bis mechanism. As acknowledged in the proposal: ‘A particular concern for countries with insufficient or no manufacturing capacity are the requirements of Article 31bis and consequently the cumbersome and lengthy process for the import and export of pharmaceutical products.’ The proposal equally overcomes the limitations of the security exception in Article 73(b)(iii) of the TRIPS Agreement. Importantly, as I have noted here, the security exception cannot be used to circumvent the shortcomings of Article 31bis of the TRIPS Agreement. The proposal can thus be potentially beneficial to those countries with insufficient or no manufacturing capacity.
Nevertheless, given that the proposal (as expressed in the document) is premised on ensuring that ‘intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines’, then it would have been helpful to have some data or evidence to back up the claim in the proposal that ‘intellectual property rights may also pose a barrier’ in this regard. Instead, at paragraph 9, the document merely asserts that there are ‘several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients.’ A footnote to this claim only contains hyperlinks to 2 news articles. It is probably a stretch to regard these two sources as ‘several reports’. Crucially, is there any data or evidence suggesting, for instance, that copyright is creating or may create barriers to timely access to COVID-19 medicines and/or vaccines?
In any case, it would be interesting to see how other WTO Members such as the USA, EU, Japan, and Switzerland react to this ambitious proposal. The next meeting of the TRIPS Council is scheduled for 15-16 October 2020. That should be an interesting session.
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