The WTO leaked text : What comes first: public health or commercial interest?

By mid 1990, new medicines to treat HIV became a reality and people living with the virus in the North had their lives turned around. However, people in the South, where most of the infection was, were pushed to the back of the queue by the high prices of these medicines.

In 2001 the US and UK were desperate for support from the rest of the world especially in the Arab region so that they can attack Afghanistan with the blessing of the “international community”. At the same time the WTO held a very important meeting in Doha, in a Moslem country in the region that the West was seeking its support. Negotiations were tough between rich countries protecting intellectual property rules to benefit their pharmaceutical companies and developing countries pushing back to protect the health and access to medicines for their population. The result was the “Doha Declaration”, which asserted that public health takes precedence over commercial interest.

Press forwards to 2020, when COVID-19 hit the world. Advances in science as well as huge public funding resulted in the production of several vaccines that protect people against the development of serious disease and hospitalisation. This time too, people in developing countries were pushed to the back of the vaccine queue as pharmaceutical companies prioritise high profit in rich countries and governments of these countries hoard what they can.

In October 2020, before the first vaccine hit the market, India and South Africa proposed a waiver on relevant intellectual property rules on medical technologies relevant to COVID-19-“TRIPS waiver”. Over 100 developing countries support the Waiver, which will enable diversified manufacturing and thus decrease dependence on a handful of pharmaceutical companies based in a handful of countries.

The same tough negotiations are repeated. The EU, US and other rich countries pushing to protect intellectual property rules to allow pharmaceutical companies monopoly on medical products. Developing countries, on the other side, fighting to diversify production in order to protect the health of their populations.

The political context is as important as it was in 2001. A leaked text from the “quad” negotiation (US, EU, India and South Africa) carries the mark of the EU and US and is nowhere near the original waiver. The EU proposes the text as “this is the maximum you can get”. EU is using the war on Ukraine as “let’s finish with the waiver as we are busy with saving Ukraine”.

The current leaked text is actually a reverse of the Doha declaration: it puts commercial interest above public health. It is not a TRIPS Waiver in any sense. In fact, it is a slightly modified EU proposal, which is the TRIPS compulsory licensing with one clarification on production for export but with many obligations not even in the original TRIPS agreement!

Here are 5 key problems with the leaked text:

1. The focus on patents only is hardly more than compulsory licensing enshrined in the TRIPS agreement, but with one clarification on production for export and several new restrictions which are TRIPS+.

2. There are extra obligations on users of the text including:

a) listing all patents before using the text. This is almost impossible given that companies do not publish filed or granted parents systematically; they continue to file even after a product is on the market; and WIPO is not mandated to have accurate lists. Moreover, patent ownership is not always clear. For example, currently 6 companies are fighting over patent ownership of the 2 mRNA vaccines. Therefore, companies in developing countries would not have confidence to enter into production for fear of infringement.

b) countries must notify the TRIPS council of their intention to utilize this agreement; and

c) countries have to take anti-conversion measures.

All these new obligations are not in the TRIPS agreement and must be removed in any future text.

3. It ignores other crucial intellectual property rules including trade secrets, copyrights, industrial designs and undisclosed data related to medical technologies for COVID-19. These IP rules constitute barriers to production even without patents. The Waiver must cover all these IP rules.

4. It focuses only on vaccines yet the inequality in access to medicines and tests are stark. The text states that the WTO would consider treatment and tests after 6 months. Given that it took them 18 months of tough negotiation to come with a text that is not a waiver on vaccines, it can take even more time to negotiate a deal on those products. This is in the context of rich countries having already booked most doses projected to be produced this year of the new antivirals. The text must immediately include therapeutics and diagnostics in order to avoid the current vaccine inequality turning to be a compound vaccine and treatment inequality.

5. It excludes countries that are big producers of vaccines. The waiver must be available for all countries.

Once these amendments have been secured, there should be no time limit on the waiver.

The good news is that not one single country including South Africa and India and even the US approved the leaked text. Not surprisingly, the EU approved that text. A Mexican official came out in public rejecting the leaked text. We hope that this can encourage other countries to join the rejection.

Experts, activists and imminent figures have been warning of the flaws in the text and hopefully, it will be rejected and negotiation for removing IP barriers result in approval of real waiver.

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