Combating COVID-19: India and South Africa Call for Waiver on TRIPS Provisions

As the global community is fighting the grave threat of the pandemic COVID-19, India and South Africa have made a joint proposal to the World Trade Organisation (WTO) to waive certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to support the effective response COVID-19.

Although the Intellectual Property (IP) system is meant to provide a balance between providing incentives for bringing about innovation and rewarding creativity, and promoting the broader public interest, it also interacts with other legal systems. In the area of public health, IP objectives must also be balanced against realising the right to health, of which access to medicines and other health products is central. Direct public financing is an enabling factor in rapid research and development, and it also generates considerable good will to increase collaboration. However, IP remains a stumbling block as it is not the main enabling factor for wide collaboration that accelerates innovation. Moreover, IP also delays innovations becoming available.For instance, disputes related to Intellectual Property Rights (IPRs) infringement. As new diagnostics, therapeutics and vaccines are developed, IPRs and reluctance to share related know-how may act as barriers to rapid supply at affordable prices in all countries.

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In the context of the COVID-19, WTO Members must take action to accelerate innovation and rapid access, which requires rapid scaling up of global manufacturing capacity. Considering these factors and issues into consideration, India and South Africa have called WTO Members to agree to waive some of the obligations on protection and enforcement of patents and other IPRs during the pandemic. They have submitted the proposal for taking into consideration at the upcoming TRIPS Council meeting on 10-11 October 2020.

The document titled “Waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19” was submitted by India and Africa on 2 October. It reads “Given this present context of global emergency, it is important for WTO Members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines or to scaling-up of research, development, manufacturing and supply of medical products essential to combat COVID-19.”

Further, the communication from India and South Africa, acknowledges that “An effective response to COVID-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need”.

Apart from this, they point out that “As new diagnostics, therapeutics and vaccines for COVID-19 are developed, there are significant concerns, how these will be made available promptly, in sufficient quantities and at affordable price to meet global demand”.

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While acknowledging that several countries have initiated domestic production of medical products and/or are modifying existing medical products for the treatment of COVID-19 patients, India and South Africa maintained that “There are several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients”. Further, they state that “Beyond patents, other intellectual property rights may also pose a barrier, with limited options to overcome those barriers. In addition, many countries especially developing countries may face institutional and legal difficulties when using flexibilities available in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

India and South Africa have flagged the need for an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real-time basis. They have requested that “the Council for TRIPS recommends, as early as possible, to the General Council a waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19”. They have requested the Council for TRIPS urgently to recommendthe WTO General Council to adopt their statement for “Waiver from certain provisions of the trips agreement for the prevention, containment and treatment of COVID-19”.