On TRIPS waiver: Profit over public health 

News: In 2020, India and South Africa gave a call at the World Trade Organization (WTO) for the Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver wrt Covid-19.

Now, a deal has been brokered between the EU, the U.S., India, and South Africa on the issue. 

However, the waiver is a classic case of too little, too late. This withered down version of the TRIPS waiver will further dent the WTO’s relevance and credibility.

What are the issues with the waiver? 

First, the draft waiver does not cover any COVID-19 medical products other than Covid vaccines. For instance, baricitinib, which was recommended by WHO for treating critical COVID-19 will not be covered under it.  

Second, India proposed to waive all IP rights, not just patents. But the waiver aims to waive only patents. The waivers do not cover other IP rights.

Third, the draft waiver will allow the countries to export any proportion of vaccines that is produced domestically to eligible countries. This waiver is subject to several requirements. For example,

– eligible members cannot re-export vaccines

– WTO must be notified about every entity that has been authorised to produce the product

– The authorization of Compulsory Licence (CL) must be on a product-by-product basis (Trip Plus Obligation) etc. 

Fourth, the draft waiver is not applicable to the least developed countries. Only those developing countries that exported less than 10% of world exports of COVID-19 vaccine doses in 2021 are allowed for exportation and importation.  

Fifth, the draft waives the obligation of a member to protect undisclosed information submitted before a drug regulator to claim marketing approval in the present context. But, it is silent on overcoming the challenges posed by protection to other trade secrets covered under Article 39.1 and 39.2 of TRIPS.

Have such waivers proved effective in the past?

No.

In the aftermath of the HIV/AIDS crisis in Africa, the WTO adopted a decision in 2003 waiving certain TRIPS obligations to increase the accessibility of medicines in countries that lacked manufacturing capability.

However, this waiver was subject to stringent requirements because of which hardly any country made effective use of this waiver.

What is going to happen now? 

The deal will now be presented to the entire WTO membership to be accepted at the forthcoming ministerial meeting.

Source: The post is based on an article “Profit over public health” published in The Hindu on 28th Mar 22.