A TRIPS waiver is useful but not a magic pill
The U.S.-supported move will have an effect if countries simultaneously address non-IP bottlenecks among other things
GS 3 : Intellectual Property Rights
Background:
- In the year 2020, India and South Africa, at the WTO, proposed waiving Sections 1, 4, 5, and 7 of Part II of the TRIPS agreement (covering copyrights, industrial designs, patents, and undisclosed trade information) related to the prevention, containment, or treatment of COVID-19.
- But this move was opposed by many developed countries like UK, US, EU, Canada etc. But most recenlty United States has declared its support for a temporary waiver of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for COVID-19 vaccines at the World Trade Organisation (WTO)
- Hopefully, the U.S.’s decision would cause other holdouts like Canada and the European Union to give up their opposition. The stumbling block is the political will of the richer countries .
- Legally, the waiver is a possibilty under Article IX of the WTO Agreement whichallows for waiving obligations in ‘exceptional circumstances’which the COVID-19 pandemic undoubtedly is.
Devil in the details
- The devil would be in the details. The countries would now negotiate on the text of the waiver at the WTO. But with the prior experience at hand of the 2003 waiver of TRIPS obligations aftermath of HIV/ AIDS crisis of 1990 did not yield expected results.
- This is so because specifically, the obligation contained in Article 31(f) of TRIPS that medicines produced under a compulsory licence are predominantly for the domestic market of that country was waived, paving the way for the export of such medicines to a country that lacked manufacturing capability.
- It was subject to several stringent requirements such as the drugs so manufactured are to be exported to that nation only; the medicines should be easily identifiable through different colour, or shape; etc. these cumbersome requirements, didn’t allow effective use of this waiver.
Developing world must watch
- The statement issued by Katherine Tai, (U.S. Trade Representative) states that the negotiations on the text of the waiver will ‘take time’ given the WTO’s consensus-based decision-making process and the complexity of the issues involved.
- This signals that the negotiations on the waiver are going to be difficult. While the U.S. would not like to be seen as blocking the TRIPS waiver and attracting the ire of the global community, but it will strongly defend the interests of pharma giants.
- Currently the IP waiver talks only about vaccines but India and South Africa also proposed a waiver on medicines and technologies related to COVID-19. But the latest statement of US represntative has narrowed the approach to vaccines only.
Overcoming key obstacles
- While the TRIPS waiver would lift the legal restrictions on manufacturing COVID-19 vaccines, it would not solve the problem of the lack of access to technological ‘know-how’ related to manufacturing COVID-19 vaccines.
- Waiving IP protection does not impose a legal requirement on pharmaceutical companies to transfer or share technology. Coercive legal measures for a forced transfer of technology, would be too draconian and counterproductive.
- Therefore, governments would have to be proactive in negotiating and cajoling pharmaceutical companies to transfer technology using various legal and policy tools including financial incentives
- A TRIPS waiver would enable countries to escape WTO obligations, it will not change the nature of domestic IP regulations.
- Therefore, countries should start working towards making suitable changes in their domestic legal framework to operationalise and enforce the TRIPS waiver.
- In this regard, the Indian government should immediately put in place a team of best IP lawyers who could study the various TRIPS waiver scenarios and accordingly recommend the changes to be made in the Indian legal framework.
Conclusion
- Notwithstanding the usefulness of the TRIPS waiver, it is not a magic pill.
- It would work well only if countries simultaneously address the non-IP bottlenecks such as technology transfer, production constraints, and other logistical challenges such as inadequacy of supply chains and unavailability of raw materials to manufacture vaccines and medicines.
