Despite numerous meetings and exchanges of views stretching over a year, a consensus still seems elusive at the WTO on the India-South Africa proposal for a temporary waiver of Trade Related Intellectual Property Rights (TRIPS) for Covid-19 vaccines and medical products. But the proposal has already served a useful purpose. It has spurred a debate around the world on how intellectual property can be limiting access to critical medicines, vaccines and medical products for not just poor countries but also the vulnerable sections in the developed world.

There is a growing realisation in developed countries that governments need to look beyond the narrow interests of a handful of powerful pharmaceutical companies, or at least appear to be doing so, in a pandemic-hit world affecting millions, or there may be political ramifications.

India and South Africa, which have so far emphasised on the growing vaccine inequity and the resulting threat to global recovery to gain support for their proposal, have to plan their next moves cautiously. Careful compromises have to be made on the matter as too much inflexibility can kill the proposal. At the same time, it has to be ensured that the concessions that members such as the US and the EU seem willing to make get maximised.

The pharma lobby

It is no secret that global pharmaceutical giants in rich nations are strong lobbyists and have a lot of influence over their country’s governments, irrespective of the party in power. Countries like India and Brazil, with huge capacities to produce high quality and cheap generic medicines, have been under constant pressure from countries such as the US, Switzerland, Sweden, Japan and the Netherlands to tighten their IP laws in favour of the multinationals.

For the rich countries, protection offered by the WTO’s TRIPS agreement, which was actually mostly drafted by them, has not proved to be enough. There has been a growing clamour that all countries should adopt ‘TRIPS plus’ regulations, by framing more stringent patent norms, so that patent holders can keep earning more profits. In fact, the US Trade Representative’s office, in its annual report on the IP scene in various countries, has been continuously rating India as a ‘priority watch’ country for allegedly extending inadequate protection.

Ambitious call

So, when India and South Africa put in their proposal on October 2, 2020, calling for a temporary TRIPS waiver, it did seem to be a very ambitious call that could be crushed in a jiffy by the rich and powerful members. However, that has not happened. As the number of Covid-19 cases and deaths surged across the world, more and more developing countries and LDCs started putting their weight behind the proposal. Even as the governments in the developed world held back their support, civil society organisations, law-makers and influential individuals from all spheres of society sent them numerous representations endorsing the proposal.

The Biden government could not take the pressure any longer when some 108 members of the Congress, including 10 Democrat Senators, wrote to the President in May 2021, seeking support for the waiver proposal so that countries could locally manufacture Covid-19 diagnostics, treatments and vaccines to end the growing vaccine inequity. The US government soon announced that it was ready to support negotiations for a temporary waiver of TRIPS for producing Covid-19 vaccines, much to the chagrin of its pharmaceutical industry.

EU proposal

With a large number of members of the European Parliament, too, voicing support for a waiver, the EU, soon after, was forced to come up with its own proposal at the WTO for easing IP restrictions for production of Covid-19 vaccines and therapeutic products. One of its proposals was providing greater clarification and facilitation of TRIPS Agreement flexibilities relating to compulsory licences.

Although the EU proposal has been criticised on the ground that it does not offer anything new, it is actually a landmark development. While so far developed countries actively discouraged the use of compulsory licences, which is actually a legitimate WTO tool that empowers governments to allow generic production of patented medicines at the time of health crisis, the EU proposal encourages it. It talks about ways to build in legal certainty and enhance the effectiveness of the system.

This certainly can go a long way in ensuring that countries, including India, that had stopped using compulsory licences due to vocal opposition from developed nations, would start using them again to produce cheap generic versions of medicines for life-threatening diseases.

Big potential gains

It is true that there still remains a wide gap between India and South Africa’s demand for a three-year TRIPS waiver on a whole range of health products and technologies and what the US and the EU are willing to negotiate. The US has so far expressed support for negotiations on waiver for just Covid-19 vaccines, while the EU is only focussing on easing of compulsory licences. But compared to where things stood before the pandemic, these are developments that could result in big potential gains.

With countries grappling to deal with the highly contagious Omicron variant, constant threats of new mutants emerging and growing concern over abysmally low rates of vaccination in low-income countries, the world seems to be in the mood to challenge the monopoly of large pharmaceutical companies.

It will be naive to imagine that the rich and powerful corporates would ever be easy to take on. But India, South Africa and the 100 other supporting countries, have to keep up the fight.

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