India’s IP Waiver Proposal at WTO: Demarcation of line between Developed and Developing Countries
The cold war between the developed and developing countries (here in this article incl. of underdeveloped countries) over Pharmaceutical products has started since the Uruguay Round of GATT spanning from 1986 to 1993. During the Uruguay Round of Negotiations, the developing countries on the one hand were in favor of formulating International Norms for Pharmaceutical Products more from the trade perspective, on the other hand, developing countries were more inclined towards public health. At the end of the Negotiation, Developed Countries showed their omnipotence state and as a result, the agreement which was finalized was more in their favor. The developing countries were only assured that the agreement includes many striking features like- Compulsory licensing or parallel imports which will help them to confront their health problem.
Last year when the TRIPS agreement was celebrating its silver jubilee, the novel CoronaVirus (COVID 19) hit the world. This contagious disease has since spread worldwide, leading to a global pandemic. The lack of structure and function of CoronaVirus causes new difficulties in the treatment of the disease. Soon after, the World Health Organization (WHO) declared COVID 19 as a pandemic on March 11, 2020, there was a worldwide effort to develop an effective vaccine against CoronaVirus. Finally, when the vaccine was developed by the different nations including the United States, India, China, and Russia, the developed and developing countries yet again took shots at each other regarding IP waiver.
What is IP Waiver Demand?
When COVID 19 vaccines look set to protect 7.8 billion people across the world the rivalry between developed and developing countries started. The World Health Organization (WHO) introduced a Covid – Technology Access Pool (C-TAP) to share expertise to rapidly scale up the development and distribution of vaccines. Accordingly, India and South Africa suggested to the WTO’s TRIPS Council to waive the certain provision of the TRIPS Agreement for the duration of the pandemic. India and South Africa are of the view that wider access to technology is necessary for the production of vaccines and medicines. To ensure widespread access to affordable and reliable vaccines, rapid scaling up of local production would be crucial. It was asserted that for the development and production of COVID 19 Vaccines and drugs, IP Waiver would be very helpful for the developing countries. Developed Countries like the US and UK oppose the move as suspension of IPRs would stifle further innovation and may cause huge loss to the pharmaceutical companies in the trade and business of IPs concerning vaccines and drugs.
Waiver Proposal of India and South Africa
India and South Africa proposed the WTO to relinquish the implementation, application, and enforcement of four forms of IPRs covered by the TRIPS Agreement for some years for the prevention, containment, and treatment of COVID-19. The waiver proposal covers Copyright, Patent, Trade Secret, and Industrial Design.
It was argued by India and South Africa that during this global pandemic it is important for WTO Members to work together to ensure that intellectual property rights do not obstruct timely access to affordable medical goods, such as vaccines and medicines, or the scaling-up of research, growth, production, and supply of medical products, which are critical in the fight against COVID-19.
Why is this proposal important?
The importance of the waiver proposal is three-fold: • The intellectual property rights concerning the invention of the vaccine have impeded or is threatening to impede the availability of medical products at affordable prices. • Secondly, the Intellectual property on various technologies can have a chilling effect on the innovation process involving COVID-19 medical products as potential innovators may be inhibited in their efforts to develop new products. • Thirdly, features like Compulsory licensing or parallel imports under the TRIPS agreement are not sufficient to encounter global pandemics particularly in countries that do not have domestic manufacturing capacities.
Discussion over Proposal made by the India and South Africa
Recently, through a virtual conference, WTO’s General Council discussed the temporary waiver of IPRs relegated to COVID-19 vaccines and other coronavirus-related medical products. On the one hand WHO Director-General Tedros Adhanom Ghebreyesus has endorsed a waiver by saying- “If not now, when?”, on the other hand, WTO Director-General Ngozi Okonjo-Iweala did not endorse either side.
Next in order, four top Republican Senators through a letter to US President Joe Biden have urged not to accept a proposal by India and South Africa to the WTO to waive IPRs concerning COVID-19 Vaccine, stating that this would end the innovation pipeline and stop the development of new vaccines or boosters to address variants in the virus.
TRIPS Agreement or Doha Declaration which was adopted by the WTO in 2001 as a reaction of Developing Countries during the Uruguay Round of Negation. The Doha Declaration reaffirms the flexibility of TRIPS member states in circumventing patent rights for better access to essential medicines. However, these two instruments were still not competent to maintain equilibrium between trade and public health. This is the reason that once again the developed and developing countries are divided into two sections- one supporting the proposal and the other opposing the proposal made by India and South Africa at WTO for waiver of Intellectual Property Rights. The proposal made by India and South Africa draws the support of more than 100 countries. However, rich countries like the United States, United Kingdom, Switzerland have repeatedly opposed the waiver of IPRs.
The proposal is not only important in the light of the Global Pandemic; it raises one of the important questions, that which is more important: public health or patent protection. The relationship between public health (or human rights) and intellectual property requires detailed elaboration which will be part of another discussion. But here it is important to watch how WTO is going to disentangle this issue. They have only two options either to leave developing countries to suffer from their health problem at the hands of economic concerns or allow the proposal made by India and South Africa to give superiority to public health over intellectual property.