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India and South Africa joined their hands by making their joint submission publicly to the WTO on October 2, 2020. They seek a time-bound waiver of intellectual property, patent, copyright, and protection under certain provisions of the TRIPS Agreement. Their main motive behind this was the prevention, containment, and treatment of COVID-19. TRIPS Council will discuss the matter in their next session which will take place between October 15-16, 2020.
Even the governments and eminent personalities also made similar calls before the joint proposals by India and South Africa to the World Trade Organisation for a waiver of patent and intellectual property rights (IPRs) for COVID-related vaccines, therapeutic and diagnostic tests. If given a thought to it then everyone would agree to the fact that it is the need of an hour and moral necessity as well. Even the initial work of producing the genetic sequence of the virus, identifying its morphology, and the structures of key proteins and enzymes were all done through the international collaboration of scientists. Then why not waiving of IPRs.
This proposal will not only saves time and costing of the drugs and vaccines but also will save numerous in the world. It will help in avoiding long and complicated procedure of compulsory licensing. This makes countries o work according to terms and conditions restricting their rights to export to specified markets. However, if the powerful nations like UK, USA, Russia do not see the proposal’s value then poor countries will have no choice other than to issue compulsory licenses, buttressed by price controls.
“The outbreak has led to a swift increase in global demand with many countries facing acute shortages, constraining the ability to effectively respond to the outbreak. Shortages of these products have put the lives of health and other essential workers at risk and led to many avoidable deaths. It is also threatening to prolong the COVID-19 pandemic. The longer the current global crisis persists, the greater the socio-economic fallout, making it imperative and urgent to collaborate internationally to rapidly contain the outbreak. And an effective response to COVID-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment, and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need,” according to the joint statement of India and South Africa.
The extraordinary transnational collaboration helped in the production of medicines and vaccines amidst this pandemic. The alarming situation of this Pandemic proved to bring nations closer to each other and motivated them to work collectively. Everything has been done making “urgent need of treatment and vaccines” a priority then things should not be made difficult at the last step of actual delivery of key chemicals. At this moment cure and prevention of the disease is the most important thing. High-income countries are capable enough to pay hefty amounts to multiple companies to provide their citizens with requisite doses of the vaccine and other therapies. India has the mass production facilities so waiver of intellectual property rights will help the world’s less well-off nations in accessing those medicines.
Benefits of waiver:
- Low costing
- Easy access worldwide
- Help the low and low-middle income countries in securing requisite doses for themselves
- The benefit of the waiver will accrue to rich countries as well.
The virus does not see power, financial status, national borders, religion, caste, or anything. All humans are at their target. One needs to understand the fact that if poor countries are not safe, rich countries are not, either.
“There are several reports about intellectual property rights hindering or potentially hindering timely provisioning of affordable medical products to the patients. It is also reported that some WTO Members have carried out urgent legal amendments to their national patent laws to expedite the process of issuing compulsory/government use licenses,” the submission added.
Commenting on the development, KM Gopakumar, Legal Advisor, Third World Network (TWN) said, “The TRIPS waiver proposal if agreed by other WTO member countries would help the fight against COVID-19 by promoting local manufacturing of medical products required for the COVID- 19 response. In the absence of IP protection, it can facilitate the technology transfer more easily and facilitate local production. This would in turn bring competition in the market of medical products and bring down the prices. Such a move, in any way, will financially affect the companies because the R&D functioning for COVID-19 is predominantly through public funding.”
Gopakumar added, “Though Article IX of the Agreement Establishing, WTO allows taking decisions on waiver by three fourth of the majority, generally such decisions in the WTO are taken by consensus. Therefore, the consensuses of other WTO members are required to give the legal effect to the proposal”.
“In 2001, at the height of the HIV epidemic when nearly 10,000 people a day were dying of AIDS, the Doha Declaration on TRIPS and Public Health affirmed that governments are free to take all necessary measures to address IP barriers to protect public health. Very simply, it puts governments in the driving seat to be able to put life before profit. The India and South Africa proposal to the WTO TRIPS Council does precisely that for COVID-19. This bold proposal, if accepted by WTO membership, will facilitate technology transfer for effective COVID-19-related vaccines, drugs or diagnostic tests as the waiver covers patents, copyright, industrial designs, and undisclosed information including know-how and trade secrets,” commented Leena Menghaney, Head, Médecins Sans Frontières’ (MSF) Access Campaign in India.
“WHO having declared COVID -19 as a pandemic and since all IP covenants such as Paris Convention, TRIPS and others including most National IP laws, include such provisions for overriding patents during pandemics and national emergencies, it is appropriate for the WTO to endorse such a resolution for waiving IP/Patent rights on all forms of medications related to the pandemic. A review may be undertaken in one year from the date of the waiver,” informed Dr. Gopakumar Nair, Patent Attorney, and CEO, Gopakumar Nair Associates.
He said, “In the specific case of Anthrax thread, the US had waived patent rights on relevant antibiotics in 2001. Therefore, considering the present pandemic situation COVID-19, they should be considering it.”