Deliver a bold outcome on TRIPS waiver proposal: WTO urged

Intellectual property rights

Dr. Ngozi Okonjo-Iweala

Director General

World Trade Organization

Ms Anabel González

Deputy Director General

World Trade Organization

Dear Dr. Okonjo-Iweala and Ms. González,

COVID-19 has disrupted societies, wreaked economic havoc, and affected livelihoods, with developing and least developed countries disproportionately impacted. UNCTAD has highlighted that the damage from the COVID-19 crisis has exceeded that of the Global Financial Crisis in most parts of the global economy, but has been particularly draining on the developing world. The crisis has been exacerbated and continues to adversely affect many developing and least developed countries as promises of solidarity and collaboration towards equitable access to vaccines, treatments and tests have mostly failed to materialise.

We join co-sponsors of the TRIPS Waiver proposal and other developing countries in stressing that for a WTO response to the pandemic to be credible, it must deliver a bold and meaningful outcome on the TRIPS waiver proposal and address concerns about the impact of intellectual property on timely and affordable access to medical products. In this letter, we would like to highlight some key aspects that should guide consultations and negotiations on this matter to deliver a meaningful outcome.

The main purpose of the waiver proposal is the prevention, treatment and containment of COVID-19 and expanded and diversified supply, affordable prices, and more equitable access of the full range of medical products needed to achieve those goals. Of particular importance are diagnostics, therapeutics and vaccines. Some WTO Members have supported an IP waiver, albeit only for vaccines. However domestically, these same Members have emphasized the significance of testing and treatment in controlling COVID-19 infections. Dr. Anthony Fauci, chief medical adviser to the President of the USA and NIAID Director has stated that “New antivirals that prevent serious COVID-19 illness and death, especially oral drugs that could be taken at home early in the course of disease, would be powerful tools for battling the pandemic and saving lives,” while Dr. David Kessler, Chief Science Officer for the Biden Administration’s COVID-19 Response said “An easily administered oral antiviral drug would be an important part of our therapeutic arsenal that would complement the great success of our vaccine efforts.”[1] Testing and access to diagnostics, especially antigen rapid tests is essential to peoples’ knowledge of their health status, compliance with public health measures, connection to treatment and care, and surveillance.

The EU COVID-19 therapeutic strategy also states, “vaccines will not eliminate the disease overnight and therapeutics will still be needed for patients in hospitals and at home, including people suffering from ‘long COVID’ (the long-term effects of COVID-19 infection). For these reasons, therapeutics will continue to play a significant role in the response to COVID-19, complementing the successful EU strategy for COVID-19 vaccines.”[2] Notably WHO’s COVID-19 Strategic Preparedness and Response Plan has underlined the importance of diagnostics, therapeutics and vaccines for an effective COVID-19 response.[3]

For these reasons, any credible waiver outcome must also equally cover the medical products essential to control COVID-19 and especially vaccines, therapeutics and diagnostics, including their materials and components. Addressing access to therapeutics and diagnostics must not be delayed.

It has previously been reported that some Members, such as the EU, oppose a waiver of IP barriers and instead are focused on the notion of compulsory licensing of patents only, especially in the context of Article 31bis mechanism (CL for exports).[4] In addition, reportedly, some Members, including the EU in particular, are unwilling to consider unconditional waivers of other provisions such as Article 31(f), Article 28.1, Article 39, and Part III of TRIPS (enforcement requirements.)[5] This position of the EU and others is absolutely unjustified and should not be accepted.

We recall that even prior to the pandemic, the challenges of using compulsory licensing mechanism for exports (Articles 31(f) and 31bis) and the ineffectiveness to deliver equitable access were well-known.[6] In addition, these CL provisions are only relevant to patents and do nothing to address other intellectual property barriers. For example, information related to manufacturing and quality control processes are often claimed by industry as trade secrets, even when this information bears clear public interests to boost the diversification and scale of production. As such, a waiver of Article 39 of TRIPS on “Protection of Undisclosed Information” is absolutely essential and in the public interest. Further as elaborated in co-sponsors document IP/C/W/684, copyright and industrial designs may also create obstacles for production and supply, and so these concerns also have to be addressed.

While the specific details of the current consultations/negotiations are not public, we would like to stress that any Waiver outcome has to create a clear pathway that provides potential manufacturers the full freedom to operate — to manufacture, to import and export, and to commercialize needed COVID-19-related medical products — without having to deal with procedural and legal IP requirements on a product-by-product basis. The waiver decision should also accord governments policy space to implement measures necessary to facilitate production, import and export of medical products and their components.

Further the duration for the waiver outcome should reflect the current unpredictable complex situation with respect to COVID-19. This includes the possibility of new, more lethal variants, uncertainty over the duration of vaccine immunity, vaccine effectiveness against new variants and the need to motivate diversified production and expand supply options especially in developing and least developed countries. In this regard, we support the proposal of TRIPS waiver co-sponsors in IP/C/W/669/Rev.1.

The WTO should also learn from the mistakes of its past. The cumbersome requirements of the Article 31bis mechanism have resulted in an inflexible and unwieldy mechanism, unsuitable for promptly addressing urgent challenges of access. Hence, attaching conditions to the TRIPS waiver outcome under the pretext of transparency and that complicates the application of the waiver or limits its use to some Members will only further undermine the already rather fragile credibility of the WTO.

The time for excuses is over. Billions of people around the world are waiting for the WTO to deliver a bold outcome on the TRIPS waiver proposal that will effectively and concretely contribute to enabling production in and expanding supply options towards realizing equitable access which is the key to socio-economic recovery.

Signatories

Global

1. ACP Civil Society Forum

2. Amnesty International

3. Bread for the World

4. Building and Wood Worker’s International (BWI)

5. Center for Economic and Social Rights

6. Civil Society Financing for Development Group

7. Corporate Accountability

8. Development Alternatives with Women for a New Era (DAWN)

9. Education International

10. Feminists for a People’s Vaccine, Global South

11. Global Policy Forum

12. Health Action International (HAI)

13. Health Global Access Project (Health GAP)

14. Health Poverty Action

15. International Transport Workers’ Federation (ITF)

16. International Treatment Preparedness Coalition (ITPC)

17. International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Associations (IUF)

18. IT for Change

19. LDC WATCH

20. Médecins du Monde International Network

21. Médecins Sans Frontières (MSF) Access Campaign

22. Open Knowledge Foundation

23. Oxfam

24. Peoples’ Health Movement (PHM)

25. People’s Vaccine Alliance (PVA)

26. Public Services International (PSI)

27. Regions Refocus

28. Social Watch

29. Society for International Development

30. Third World Network (TWN)

31. Trócaire

32. Women in Migration Network (WIMN)

33. Women’s Working Group on Financing for Development

Regional

34. African Alliance

35. AIDS and Rights Alliance for Southern Africa

36. Arab Forum for the Rights of Persons with Disability

37. Arab NGO Network for Development (ANND)

38. Asian Pacific Resource and Research Centre for Women (ARROW)

39. Asian Peoples Movement on Debt and Development

40. Asia Pacific Network of People Living with HIV/AIDS (APN+)

41. Focus on the Global South

42. Gramya Resource Centre for Women

43. Health Action International Asia Pacific

44. Project Organizing Development and Education

45. Southern African Programme On Access to Medicines and Diagnostics (SAPAM)

46. Women In Development Europe+

47. Yolse, Santé Publique et Innovation

National

48. Access to Medicines Ireland

49. Access to Medicines Research Group, China

50. Africa Development Interchange Network (ADIN), Cameroon

51. Africa Japan Forum, Japan

52. Africa Young Positives Network, Uganda

53. AIDS Access Foundation, Thailand

54. All India Drug Action Network, India

55. All Nepal Peasants Federation

56. Alternative Budget Initiative- Health Cluster, Philippines

57. Ashar Alo Society (AAS), Bangladesh

58. Asia Pacific Forum on Women, Law and Development, Thailand

59. Asian Health Institute (AHI), Japan

60. Asociacion Mujeres Emprendedoras de Alta Verapaz, Guatemala

61. Associação Brasileira de Saúde Bucal Coletiva, Brazil

62. Association For Promotion Sustainable Development, India

63. Association for Proper Internet Governance, Switzerland

64. Attac Norway

65. Australian Fair trade and Investment Network, Australia

66. Bangladesh Nari Progati Sangha, Bangladesh

67. Bisan Center for Research and Development, Palestine

68. Both ENDS, Netherlands

69. Brot für die Welt, Germany

70. Bureau Pour la Croissance Intégrale et la Dignité de l’Enfant, Democratic Republic of Congo

71. CADIRE Cameroon Association, Cameroon

72. Campaign for Access to Medicines, Devices and Diagnostics, India

73. Campaign for Affordable Trastuzumab, India

74. Campaign for the Welfare state, Norway

75. Canadian Centre for Policy Alternatives, Canada

76. Center for Health Human Rights and Development, Uganda

77. Centre for Social Sciences Research and Action, Lebanon

78. Centre for the Development of People (CEDEP), Malawi

79. Centre National de Coopération au Développement (CNCD-11.11.11), Belgium

80. Changemaker Norway

81. Child Way Uganda (CWay-Ug)

82. Climate Watch Thailand

83. Coalizione Italiana Libertà e Diritti civili, Italy

84. COAST Foundation, Bangladesh

85. Collectif Brevets sur les vaccins anti-covid, stop. Réquisition, France

86. Community Forum (COFO), Malawi

87. Community Working Group on Health (CWGH) – Zimbabwe

88. Consumers Association of Penang, Malaysia

89. Delhi network of positive people, India

90. DIGNIDAD Movement, Philippines

91. Drug Action Forum-Karnataka, India

92. Drug System Monitoring and Development Center, Thailand

93. DUKINGIRE ISI YACU, Burundi

94. Econews Africa, Kenya

95. EKOTA, Bangladesh

96. Ensemble à Gauche (EàG), Switzerland

97. Environics Trust, India

98. Equidad de Género: Ciudadanía, Trabajo y Familia, Mexico

99. Equity and Justice Working Group Bangladesh (EquityBD), Bangladesh

100. Fairwatch Italy, Italy

101. Foundation for Integrative AIDS Research (FIAR), United States

102. Frente Nacional por la Salud de los Pueblos del Ecuador (FNSPE), Ecuador

103. FTA Watch, Thailand

104. Fundación Grupo Efecto Positivo, Argentina

105. Fundacion para estudio e investigación de la Mujer, Argentina

106. Gandhi Development Trust, South Africa

107. Global Humanitarian Progress GHP Corp, Colombia

108. Global Justice Now, United Kingdom

109. Governance Links, Tanzania

110. Grupo de Incentivo à Vida, Brazil

111. Handelskampanjen, Norway

112. Heinrich Boell Foundation, Germany

113. HIV Legal Network, Canada

114. IFARMA Foundation, Colombia

115. Indonesia AIDS Coalition, Indonesia

116. Indonesia for Global Justice, Indonesia

117. Initiative for Health & Equity in Society, India

118. Initiative for Social and Economic Rights, Uganda

119. Institute for Agriculture and Trade Policy, Unites States

120. IPLeft, South Korea

121. International Women’s Rights Action Watch Asia Pacific, Malaysia

122. It’s Our Future, New Zealand

123. Jamma Children Foundation, Gambia

124. Jesuit Justice and Ecology Network – Africa, Kenya

125. Just Treatment, United Kingdom

126. Kamukunji Paralegal Trust (KAPLET), Kenya

127. Kenya Legal & Ethical Issues Network on HIV & AIDS, Kenya

128. Kikandwa Environmental Association, Uganda

129. Korean Pharmacists for Democratic society, South Korea

130. Krishna Rabilall foundation, South Africa

131. Labor Education and Research Network, Philippines

132. Lebanese Union for persons with physical disability, Lebanon

133. Life Concern, Malawi

134. Low Cost Standard Therapeutics, India

135. Madhira Institute, Kenya

136. Malaysian Women’s Action for Tobacco Control and Health (MyWATCH), Malaysia

137. Medical Action Group, Philippines

138. Medico International, Germany

139. Misión Salud, Colombia

140. Naripokkho, Bangladesh

141. National Alliance for Right to Food, Nepal

142. National Dalit and Landless Peasants Organisation, Nepal

143. Nepal Women Peasants Association

144. Network Lobby for Catholic Social Justice, United States

145. NGO Gender Coordination Network, Malawi

146. NGOs Platform of Saida, Lebanon

147. Nigerian Women Agro Allied Farmers Assoc, Nigeria

148. Non-communicable Diseases Alliance, Kenya

149. Observátorio do ciCidadão para saúde, Mozambique

150. Pacific Asia Resource Center (PARC), Japan

151. Pakistan Fisherfolk Forum, Pakistan

152. Parlement des Jeunes Leaders de la Société Civile Guinéenne, Guinea

153. Patient and Community Welfare Foundation of Malawi

154. People’s Health Movement, Canada

155. People’s Health Movement Nepal

156. People’s Health Movement South Africa

157. People’s Health Movement, Zambia

158. People’s Health Movement – Japan Circle, Japan

159. People’s Health Institute, South Korea

160. People’s Health Organization, South Korea

161. Positive Malaysian Treatment Access & Advocacy Group (MTAAG+), Malaysia

162. Public Citizen, United States

163. Public Eye, Switzerland

164. Research and Support Center for Development Alternatives – Indian Ocean, Madagascar

165. Réseau québécois pour une mondialisation inclusive (RQMI) :, Canada

166. Rethink Trade, United States

167. Right to Health Action, United States

168. Roots for Equity, Pakistan

169. Sahabat Alam Malaysia (Friends of the Earth Malaysia), Malaysia

170. Salud por Derecho, Spain

171. Sama Resource Group for Women and Health, India

172. SEATINI, Uganda

173. Sentro ng mga Nagkakaisa at Progresibong Manggagawa (SENTRO), Philippines

174. Sisters of Charity Federation, United States

175. Slums and Rural Health Initiative-Rwanda

176. Social Watch Benin

177. Social Watch Philippines

178. SODECA, Kenya

179. Solidarité Agissante pour le Développement Familial (SADF), Democratic Republic of Congo

180. South Sudan Women’s Empowerment Network, South Sudan

181. Space Allies, Japan

182. SPECTRA, Rwanda

183. Spire, Norway

184. Spotlight Center, Lebanon

185. TEDIC, Paraguay

186. Temple of Understanding, USA

187. The Gender Studies Centre, Sudan

188. The Peninsula Foundation, India

189. Trade Justice Education Fund, United States

190. Trade Justice Network, Canada

191. Treatment Action Group, Unites States

192. UBINIG (Policy Research for Development Alternative), Bangladesh

193. Uganda National Health Users/ Consumer’s Organisation, Uganda

194. Unis pour l’Education SocioEnvironnemetale de la Femme en sigle UESEF, Democratic Republic of Congo

195. Veille Citoyenne Togo

196. Vietnam Network of People living with HIV (VNP+), Vietnam

197. Viva Salud, Belgium

198. War on Want, United Kingdom

199. WomanHealth Philippines

200. Women’s Coalition Against Cancer (WOCACA), Malawi

201. World Vision Deutschland e.V., Germany

202. Youth Foundation of Bangladesh

 https://ourworldisnotforsale.net/2022/L_WTO_2022-02-16.pdf

- Third World Network