Improving equitable access: Why an intellectual property waiver for COVID-19 products and technologies deserves global support

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Joint Statement of the Canadian Coalition for Global Health Research and the Canadian Society for International Health

The COVID-19 pandemic represents an unprecedented threat to human health, safety and well- being. Around the globe, the COVID-19 pandemic is disproportionately affecting the most vulnerable, exposing structural failures in health, social, political and economic systems that heighten vulnerability to the pandemic and amplify its negative impacts. These consequences threaten global development trajectories and are expected to be particularly severe for poor countries and people, especially in sub-Saharan Africa and South Asia.[1]

An effective response to the pandemic requires rapid access to effective and affordable diagnostics, treatments,  vaccines, personal protective equipment, and ventilators.  While the UN ACT Accelerator [2] is mobilizing innovators to address key development  of such pandemic-essential medical supplies, there are concerns that intellectual property rights enshrined in international trade agreements may serve to increase product prices and restrict their production and distribution, compromising the goals of timely availability and affordability for all in need.

A proposal for an intellectual property waiver for COVID-19 products and technologies during the acute phase of the pandemic

To enable countries to combat the pandemic, on 2 October 2020, the Governments of India and South Africa presented a joint communication to the World Trade Organization’s Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) requesting an intellectual property waiver to enable countries to combat the pandemic.[3] The time-delimited waiver, to be reviewed annually, would exempt WTO Members from the obligation to apply specific intellectual property rights (such as patents, industrial designs, copyrights and trade secrets) to COVID-19 products and technologies during the acute phase of the pandemic, until global herd immunity is reached through vaccination.[3]

WTO member states so far unable to reach a consensus on the proposal 

Forty WTO member states discussed the waiver proposal during a meeting of the TRIPS Council convened on 14-15 October 2020 [4] . A number of developing and least developed member states welcomed the waiver but wanted more time to study its practical implementation and legal impacts. Other developing and developed member states opposed the waiver, with some arguing that such rights have not posed a barrier to accessing COVID-19 related medicines and technologies and that the main impediments are inefficient and underfunded health care and procurement systems. There was also disagreement on whether TRIPS flexibilities for compulsory licensing and parallel importation were sufficient, with proponents of the proposed waiver arguing that many developing countries face institutional and legal difficulties exercising such flexibilities.

Unable to reach consensus on the waiver request, the Council chair suspended the proposal for consideration at a later date. Under WTO rules, a decision on waiver requests must be reached within 90 days, which in this instance will expire 31 December 2020. The TRIPS Council will reconvene prior to that date to further consider the waiver request.

The proposal will be re-considered shortly. It deserves Canada’s and other countries’ support.

In light of the above, we urge the Government of Canada, and call on other WTO member states when the TRIPS Council reconvenes to support fully this important multilateral strategy to ensure equitable access to COVID-19 products and technologies. We further call on the Government of Canada, and all other donor countries, to increase the levels of their health development assistance to countries facing health systems and procurement barriers to rapid distribution of essential medicines, vaccines and medical supplies needed to end the pandemic.

References

1. Updated estimates of the impact of COVID-19 on global poverty https://blogs.worldbank.org/opendata/updated-estimates-impact-covid-19-global-poverty

2. The Access to COVID-19 Tools (ACT) Accelerator https://www.who.int/initiatives/act-accelerator

3. Waiver from certain provisions of the TRIPS agreement for the prevention, containment and treatment of COVID-19 communication from India and South Africa. Council for Trade-Related Aspects of Intellectual Property Rights IP/C/W/669 2 October 2020. https://www.tralac.org/documents/resources/covid-19/4142-waiver-from-certain-provisions-of-the-trips-agreement-prevention-containment-and-treatment-of-covid-19-india-and-south-africa-wto-2-october-2020/file.html

4. Members discuss intellectual property response to the COVID-19 pandemic. 20 October 2020. https://www.wto.org/english/news_e/news20_e/trip_20oct20_e.htm

Lead writers: Mira Johri, Université de Montréal & Ron Labonté, University of Ottawa

Thank you to our French translation contributor: Farah Bentahar-Houadfi