Tripping on waiver 

The recent 12th WTO Ministerial Conference decided to waive Article 31 (f) of the TRIPS Agreement under certain conditions. But is this a success as Commerce Minister Piyush Goyal claims?

The original proposal, in October 2020 by India and South Africa, sought a waiver from the implementation, application, and enforcement of certain provisions of the TRIPS agreement.

If adopted this would have granted policy space to WTO members on IP to effectuate the rapid manufacture and supply of health products by limiting the monopoly rights of IP owners. Unfortunately, India and South Africa have failed to save the spirit and soul of the proposal.

Skewed scope

The original proposal included vaccines, therapeutics and diagnostic technology. The current waiver plan is limited to vaccines, their ingredients and processes.

The ministerial decided to waive only Art 31(f), which does not allow export of predominant part of the production under a compulsory licence. The waiver of this provision now allows predominant part of the production for export purposes. In other words, the decision does not seem to really provide any benefit to overcome IP, that is, the issuance of compulsory licence for domestic use.

However, the waiver is not unconditional. The first restriction puts the burden of proof on the country implementing the waiver to establish that the patents, for which the waiver is sought, are absolutely necessary for the manufacture and supply of Covid-19 vaccine, that is, the waiver does not recognise a requirement in terms of increasing efficiency.

The second burden of proof is that such use is also restricted to ‘the extent necessary to address the Covid-19 pandemic’. And the third restriction, as a corollary, is that it is pandemic-related.

Once Covid-19 stops being a pandemic and becomes an epidemic of developing countries, is it no more a concern? It is not only the scope that is skewed; the beneficiaries are also restricted.

Unlike the original proposal, an ‘eligible member’ is limited to developing countries without vaccine export capabilities. Developing countries with vaccine export capacity are asked to make a ‘binding commitment not to avail themselves of this decision’. This is a shrewd exclusionary tactic.

Developed countries are now given space to put pressure on nations with vaccine export capacity, like India, to make the ‘binding commitment’ against implementation of waiver. This makes the text insular to the idea of capacity building, a main objective of the original proposal. It punishes the developing countries which, with their limited resources, created the capacity to export vaccines during the pandemic.

Further, the re-export is limited to ‘exceptional circumstances’.

In the name of ‘transparency’, the countries implementing the text have been asked to provide detailed information, including but not limited to, name and address of the authorised entity, products of authorisation, the quantity for which authorisation is granted, etc. This makes the application of the decision text complicated going against the original proposal’s demand of cutting down on bureaucratic formalities in times of crisis.

What’s more, the waiver text is subject to the provisions of TRIPS. So, what are we actually trying to waive?

The writer is Assistant Professor of Law, School of Law, Christ (Deemed to be University) Delhi NCR

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