Six Reasons Why a Trips Waiver Is Needed to Justly and Effectively End the Covid-19 Pandemic
Trade Related Aspects of Intellectual Property Rights (TRIPS) are international agreements for the protection of intellectual property monopolies (including patents, trademarks, copyrights, trade secrets etc.) monitored by the World Trade Organization (WTO). TRIPS obligates member states to protect intellectual property in their respective domestic legal systems for goods including medical technologies. A variety of medical technologies indispensable for controlling the ongoing COVID-19 pandemic – test kits, masks, vaccines, therapeutics for the treatment of COVID-19 and artificial intelligence – are treated as intellectual property protected technologies under TRIPS.
A waiver mechanism exists for some or all of the TRIPS provisions to be deferred temporarily. In October 2020, India and South Africa formally proposed a temporary waiver of certain TRIPS protections, “in relation to prevention, containment or treatment of COVID-19,” inter alia “[r]ecognising the need for unimpeded and timely access to affordable medical products including diagnostic kits, vaccines, medicines, personal protective equipment and ventilators for a rapid and effective response to the COVID-19 pandemic.” A TRIPS waiver would allow countries who are WTO members to choose to not enforce intellectual property protections on COVID-19 medical technologies for the duration of the pandemic. Despite overwhelming support for a TRIPS waiver within the WTO, a small number of Global North members states of the WTO – which are also the home states of corporations who own intellectual property monopolies over COVID-19 medical technologies – have either not supported the waiver or opposed the waiver in its entirety (e.g. the European Union, United Kingdom, Switzerland, Canada and Japan) or supported limited scope waivers that do not necessitate the technology transfers required to meet urgent need for vaccines in the Global South (e.g. U.S.). Far from leveraging the current situation to make access to critical healthcare technologies in the Global South a priority, Global North countries are using this moment to push for more liberalization, deregulation of Global South markets and interventions that undermine the current flexibilities available to Global South countries at the WTO, for instance in Section 31bis of the TRIPS Agreement, derived from the Doha Declaration which allows measures against frivolous patent claims and for dealing with public health emergency measures. This will impact the WTO response to both the ongoing and future pandemics.
Prepared in support of numerous ongoing initiatives of network members and allies demanding a human rights-based response to the pandemic, including equitable access to COVID-19 vaccines and other health care technologies, the backgrounder entitled Six Reasons Why a Trips Waiver Is Needed to Justly and Effectively End the Covid-19 Pandemic, debunks 6 myths perpetuated by pharmaceutical monopoly-holding corporations, their state allies and other TRIPS waiver opponents versus the reality grounded in facts.