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March 17, 2021

Comment: India and South Africa Joint Proposal on Waiver of WTO Provisions in the Time of COVID

Author: Sunidhi Bansal

In October 2020, India and South Africa filed a joint proposal before World Trade Organization (WTO) Council seeking  waiver of  certain provisions of Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.[1] The proposal seeks waiver from  implementation, application and enforcement of Section 1 (Copyrights and related rights), Section 4 (Industrial Designs), Section 5 (Patents), and Section 7 (Protection of undisclosed information) of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19.  The proposed waiver appears to be owing to “…an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real time basis.”

The waiver is requested until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity. The only exception to the claimed waiver is its application to protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the TRIPS Agreement.

It is important to maintain the fair balance between public health and intellectual property rights. Accordingly, the proposal is a great initiative in the time of pandemic as currently,  global integration is an utmost necessity. There are many countries involved in domestic research with respect to COVID-19 related vaccines and it is important for least developed countries or the countries with lack of resources to have fair access to the vaccine. Although Article 31bis of TRIPS allows special compulsory license by way of which drugs or vaccines could be exported to other members, the proposed waiver from TRIPS would avoid the hassle of getting into the complicated and time-consuming structure of Article 31bis. Moreover, Article 31bis is only applicable to pharmaceutical products, and hence it is questionable if it in itself is sufficient to deal with the challenges of COVID-19, which demands other medical products and equipment, apart from just pharmaceutical products.

Notably, the proposal is not limited only to waiver from patents related provisions, but also seeks waiver from Sections 1 (Copyrights and related rights) and Section 4 (Industrial Designs) of the TRIPS Agreement. While it is note-worthy that the proposal acknowledges intellectual property rights other than patents pose a barrier in the backdrop of COVID-19, it does not elaborate much on the issue. It is worth deliberating whether the waiver from the copyright and design related provisions is the need of the hour and whether it will fulfil the purpose behind the proposal viz. prevention, containment or treatment of COVID-19. 

[1] https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True

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