A recent move to suspend some provisions of the multilateral agreement on the trade-linked intellectual property did not get the necessary support in the World Trade Organisation (WTO). The move was initiated by two developing countries, India and South Africa, citing the global spread of deadly coronavirus or Covid-19. These two countries formally submitted a proposal for discussion at the meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on October 15-16 in Geneva. The request also asked the council to recommend to the General Councila waiver of specific provisions of the TRIPS Agreement to all WTO members 'as early as possible.'
As usual, member countries of the WTO were divided sharply in this regard which has resulted in no real progress on the proposed waiver. The Least Developed Countries (LDCs) including Bangladesh are also disappointed as they also didn't get their requested extension on the current transition period for further 12 years. The general transitional period is an exemption or waiver for the LDCs to apply the provisions of the TRIPS Agreement as these countries are not adequately capable of complying with most of the obligations of the multilateral agreement on intellectual property (IP) right.
The joint proposal of India and South Africa, co-sponsored by Kenya and Eswatini(formerlySwaziland), urged to waive standards concerning the availability, scope and use of IP rights specifically on copyright and related rights, industrial designs, patents, and the protection of undisclosed information. The proposal also argued that WTO members would commit not to challenge any measures taken in conformity with the waiver or through the WTO Dispute Settlement Mechanism.
Mostly the developing countries (Tanzania, Chad, Bangladesh, Sri Lanka, Pakistan, Venezuela, Honduras, Nepal, Nicaragua, Egypt, Indonesia, Argentina, Tunisia, Mali, Mauritius and Mozambique) backed the proposal. They also expressed their apprehension that patents, industrial designs, copyright or protection of undisclosed information may create barriers to the timely access to affordable medical products to combat Covid-19. The products include vaccines and medicines. Moreover, scaling-up of research, development, production and supply of essential medical products may also become costly due to compliance needs of patents or other forms of IP protection.
There is no doubt that an effective response to Covid-19 pandemic requires rapid access to affordable medical products like diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines. Pharma companies are in a race to develop vaccines. Though vaccines usually take years to develop before they finally reach the market, given the lingering toll of the pandemic, there is reportedly rapid progress now. Nevertheless, without a proper lab test, it is dangerous to run a human trial, let alone launch it in the market. In this connection, European Union (EU) representative in the TRIPS Council meeting mentioned that vaccine development is a complex and lengthy process that normally takes about ten years. Public funding and support may reduce the time-frame between 12 and 18 months. Again, pharmaceutical companies, supported by state agencies and universities, will not give up their IP rights, patents, to be precise. Thus, developing countries' urge to make a waiver of implementation of the specific TRIPS provisions, for the time being, appears rational.
A contentious part of the proposal is the length of the waiver period. The request said: "The waiver should continue until widespread vaccination is in place globally, and the majority of the world's population has developed immunity, hence we propose an initial duration of [x] years from the date of the adoption of the waiver." It means, the waiver would last for as many years as agreed from the decision of the General Council and the Council would review the waiver annually until its termination. India, however, argued in the meeting that the proponents of the proposal are 'not seeking a waiver for an indefinite duration.'
Developed countries (European Union, United States, Switzerland, Norway, Australia, Canada, Japan and the United Kingdom), however, firmly rejected the proposal and a few developing countries (like Brazil) joined them. These countries argued that the existing TRIPS Agreement has sufficient flexibilities, tools and policy space to ensure access to medicines and medical equipment needed to combat the pandemic and also to take measures to protect public health.
Another argument, made by the opponents of the waiver proposal was that such a wide range of wavier would ultimately weaken the IP protection and would not address the current and 'main challenges to access concerning manufacturing and raw material resources.' Some further argued that the pandemic has already created the opportunity for the increase of counterfeit COVID-related drugs and medical equipment which becomes a threat to health and safety. Interpol conducted an annual week-long (March 03-10, 2020) operation titled Operation Pangea XIII, which found that authorities from over 90 countries seized counterfeit facemasks, substandard hand sanitisers and unauthorised antiviral medication. Thus, regulatory failure is also a significant barrier to easy access to affordable medical products. Moreover, proponents of the waiver proposal could not present any strong case that IP has been a barrier to getting access to vaccines or medical equipment during the pandemic.
As a compromise stance, some members of WTO ((Nigeria, Philippines, Turkey, Ecuador, China, Thailand, Senegal, Jamaica, Colombia, Costa Rica, Chile and El Salvador) welcomed the proposal along with seeking more clarification on the possible economic impact of the waiver. As there was no consensus on the mater, it did not move ahead.
Consequently, LDCs' request for an extension of TRIPS waiver also did not get the necessary support. Earlier, LDCs got the exemption on two occasions. In 2005, the waiver was extended until July 1, 2013. Again, in June, 2013, it was renewed until July 1, 2021. As per the TRIPS provision, LDCs' 'duly motivated request' placed in the meeting, urged for a further extension of the transition period with maximum flexibility for all LDCs, including graduating LDCs like Bangladesh.
Though LDCs are now enjoying TRIPS waiver for pharmaceuticals which will expire at the end of 2032, any country graduating from the LDC category will not be eligible for the waiver. Bangladesh thus needs to push for extension of the waiver for graduating LDCs. The Covid-19 has brought an opportunity to do so.