Earlier this month, I blogged about the proposal submitted to the WTO’s TRIPS Council by India and South Africa. The proposal requests for the waiver of the obligations in the TRIPS Agreement on copyright, industrial designs, patents, and undisclosed information in relation to the prevention, containment, and treatment of COVID-19. This post is a follow-up to the earlier post on this issue as this proposal was considered by the TRIPS Council at its meeting last week (i.e. 15-16 October 2020).

As expected, there was no consensus regarding the proposal and its fate remains uncertain although there is a chance that it may be reconsidered by the Council at a later date. As the official minutes of the meeting have not been published, the brief analysis below is based on the summary of the meeting available on the WTO’s website here.

At the meeting, three main camps emerged regarding the proposal. In the first camp were the proponents who contended that the proposal ‘would 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.’ However, it seems that this proposal is really based on what the proponents think may happen and not what is actually happening right now. For instance, the proponents noted that ‘[a]s new diagnostics, therapeutics and vaccines for COVID-19 are developed, there were significant concerns about how these will be made available promptly in sufficient quantities and at affordable prices to meet global demand.’ The problem with claims like these is that they can be perceived as abstract speculations. A proposal that is based on concrete data and evidence would probably be more persuasive. I will come back to the issue of evidence later on.

The second camp was composed of developing countries who welcomed the proposal but needed clarification regarding, inter alia, ‘practical implementation and the possible economic and legal impact of the waiver at [the] national level.’

In the third camp, there were both developed and developing countries who opposed the proposal. Crucially, these countries noted, among other things, that ‘there is no indication that intellectual property rights (IPRs) have been a genuine barrier to accessing COVID-19 related medicines and technologies.’ This takes me back to the issue of evidence that I raised earlier on. As I noted in my first post on this proposal,

“…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.”

So, is it really surprising to see some countries, both developing and developed, opposing this proposal due to the lack of any concrete evidence regarding the key premise of the proposal? It may or may not be true that intellectual property rights (as embodied in the TRIPS Agreement) may pose a barrier in the fight against COVID-19. Either way, some evidence (rather than the usual rhetoric) would be helpful.