492. We thank the delegation of South Africa for their submission.
493. The TRIPS flexibilities have stood out as important policy space for Member Countries to enable them to create an IPRs regime that ensures compliance with the obligations set out in the Agreement while taking into account their developmental priorities. These flexibilities include fair use exception (copyright), research exceptions (copyright and patent), compulsory licensing (patent), parallel import, transition periods for developing and least developed countries. While patent law flexibilities are widely discussed owing to the fact that they deal with the extremely sensitive area of public health, deliberation on flexibilities in other IP areas has been somewhat limited.
494. As rightly pointed out by South Africa in its communication, battling with a pandemic like COVID-19 requires a more integrated approach to TRIPS flexibilities in all IP regimes including those in copyrights, industrial designs and trade secrets etc. Ongoing COVID19 crisis further highlights the urgent need to initiate discussion and deliberation on the flexibilities available in these IP regimes.
495. India has incorporated some of the flexibilities outside the patent protection regime that come within the scope of TRIPS Agreement in its domestic legislations. For example, the provisions related to fair use, statutory licensing and compulsory licensing in Indian Copyright Act, 1957 and parallel imports under Indian Trademark Act 1997.
496. However, the changing technology landscape with embedded IP rights have led to new challenges. Emerging technologies like 3D printing, artificial intelligence and their wide use in response to COVID-19 outbreak, including in manufacturing of ventilator valves, the AI algorithms used in identifying the outbreak and modelling travel patterns, screening passengers and predicting possible reinfections - may be protected by IP rights other than patents, like copyright, trade secrets, database rights underlying importance of flexibilities in those IP areas.
497. The COVID-19 pandemic is an unprecedented crisis, which continues to cripple economies. Its impact is particularly disastrous for the developing and least developed countries, as they lack requisite tools such as strong economy and medical infrastructure to counter the crisis. As these countries lack the capability to develop high end vaccine at short notice, the need for technology transfer and dissemination of necessary undisclosed information, trade secrets and sharing of patent has intensified. Due to lack of legal enforceability, the success of voluntary licenses and pledges will ultimately depend on the goodwill of IP holders. Moreover, as the voluntary licensing agreements are kept secret and their terms and conditions are un-known, large markets may remain unserved and monopoly situations could continue. More transparency in this regard would help in balancing the issue of IP rights and affordability.
498. Members need to deliberate upon how broader sharing of information under the trade secret regime can help in addressing a global health pandemic of the scale of COVID-19. In this regard, it is important to note that Paragraph 1 of Article 39 of the TRIPS Agreement sets down the context in which the protection to undisclosed information needs to be provided. The context is to ensure against unfair competition as provided under Article 10bis of the Paris Convention which mandates Members to provide effective protection against acts of competition contrary to honest practices in industrial or commercial matters.
499. In conclusion, we believe that further discussion on the flexibilities available in various IP regimes under TRIPS Agreement is required so as to counter the pandemic.
