After the Storm: Lessons, Lessons and Opportunities from the Proposed TRIPS Waiver

In October 2020, in the midst of the COVID-19 pandemic, South Africa and India submitted a proposal to derogate from certain provisions of Trade-Related Aspects of Intellectual Property (TRIPS), one of the founding treaties of the World Trade Organization (WTO) and, as such, a cornerstone of global trade rules.

This decision was welcomed by developing countries and civil society, but vigorously opposed by the European Union, Switzerland and the United Kingdom as well as by representatives of the pharmaceutical industry. It also highlighted latent tensions between intellectual property protection requirements and health needs that predated the pandemic and were exacerbated by the difficulties faced by governments in the Global South in ensuring access to goods. essential healthcare, from personal protective equipment to vaccines, diagnostics and therapeutics. .

For 18 months, and despite the calls of elected, academics, scientific researchers and experts and the formal approval of more than 60 governments, opponents of the waiver have refused to engage in meaningful dialogue while filibustering the WTO’s TRIPS Council. Only with the 12e impending ministerial conference was a proposalmainly reflecting the EU position and with TRIPS+ clauses, presented and then accepted as a negotiating text which resulted in a Ministerial Decision on the TRIPS Agreement.

The results was far from the overall waiver initially proposed by South Africa and India, below the bold response to the pandemic that many hoped for. He did, however, highlight several facts that need to be recognized as they are likely to shape not only the response to health emergencies in the future, but also how governments and other actors attempt to modify, reform or replace existing legal and institutional frameworks:

  • Unresolved issues. There is still no lasting compromise allowing countries without pharmaceutical manufacturing capacity to use the flexibilities of the TRIPS Agreement; furthermore, the transfer of technology by patent holders, as envisioned in the TRIPS Agreement, is not pursued with as much vigor as the enforcement of intellectual property in low- and middle-income countries (LMIC). The issue of intellectual property rights as barriers to manufacturing and access to health technologies remains on the public agenda.
  • Untapped potential. Mobilization for the waiver has transcended traditional boundaries and constituencies involving actors and stakeholders not previously involved in the access to medicines movement; transnational alliances have been formed and ad hoc global coalitions have emerged, these networks will continue to collaborate to improve access to health technologies by working at national, regional and global levels. Global South organizations and grassroots movements will remain important elements in future advocacy efforts.
  • The next chapter. The proposal for a waiver to the TRIPS Agreement was part of a wider debate on the place and role of intellectual property in general, and of the TRIPS Agreement in particular, on access to health; This discussion will be taken up in various forums and bodies in the months to come, in particular: the national debates around patent law (including opposition to patents), the response of the European Parliament and of the Council of the European Union to the proposals for the European Commission on pharmaceutical legislation and the consolidation of the European health system Emergency Preparedness and Response Authority (HERA) and deliberations within the Intergovernmental Negotiating Body (BNI) to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response. Access and innovation must be linked through fairness, transparency and inclusion.

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