Truncated India-S Africa proposal on TRIPS waiver limits concessions to Covid vaccine

After months of uncertainty, the proposal made by India and South Africa to waive off the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to make Covid-19 related treatments, medicines and technologies accessible to everyone may get approved by WTO members in a truncated form. The compromise agreement, however, ignores several key proposals made by India on behalf of the developing world. It limits the exemption to vaccines with a commitment to decide on the extension of the solution to therapeutics and diagnostics within 6 months from the date of the decision on vaccines.

The office of the United States Trade Representative (USTR) has confirmed that informal discussions led by the WTO Secretariat with South Africa, India, the U.S. and the European Union (EU) to try to break the deadlock has resulted in a compromise outcome.

Civil society groups in several parts of the world have flayed the compromise formula thrashed out by the quadrilateral discussions, terming it as a very limited and narrow agreement. “It only covers vaccines, it limits eligible members to developing countries, and only those who exported less than 10% of world experts in 2021,” James Love of Knowledge Ecology International says.

“Countries are required to follow Article 31 of the TRIPS, which of course, is an existing and not a new flexibility, but with “clarifications” that are new obligations on countries that do not presently exist in Article 31. With the exception of the partial waiver of paragraph f in Article 31 (exports to “eligible countries”), the agreement makes Article 31 more restrictive and burdensome,” he adds.

In a recent letter to commerce minister Piyush Goyal, RSS affiliate Swadeshi Jagaran Manch (SJM) had clearly cautioned the government against taking any steps that limit the exemptions to vaccines. The letter had said that the scope of the TRIPS waiver decision should not only include vaccines but also therapeutics and diagnostics. It demanded that the waiver outcome should go beyond the compulsory license (CL) mechanism (Article 31 and 31bis of the TRIPS Agreement which are about patents) and should include trade secret protection under Article 39.3, which is very essential for the generic production of vaccines and Covid-19 monoclonal antibodies. It also said the decision should cover both patented productions and products with pending patent applications.

Meanwhile USTR has said that since last May, the agency has worked hard to facilitate an outcome on intellectual property that can achieve consensus across the 164 members of the World Trade Organization to help end the pandemic. “The difficult and protracted process has resulted in a compromise outcome that offers the most promising path toward achieving a concrete and meaningful outcome. While no agreement on text has been reached and we are in the process of consulting on the outcome, the U.S. will continue to engage with WTO members as part of the Biden-Harris Administration’s comprehensive effort to get as many safe and effective vaccines to as many people as fast as possible,” the USTR statement said.

In a separate communication the European Commission has circulated the text to be presented to WTO Members as a compromise outcome of the quadrilateral discussions to its members for comments by March 16.