Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Xolelwa Mlumbi-Peter
15 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19
1071.   We would like to thank Eswatini, India, Kenya and South Africa for their proposal. Norway attaches great importance to tackling the global health challenges in the context of COVID-19, including providing access to the necessary medical products for all. To develop and produce, in sufficient amount, all necessary products, whether protected by patents or not, international cooperation is crucial and there are many strategies being employed by governments to achieve the best possible outcome. 1072.   Norway believes that the availability of medicines and other medical products in the context of COVID-19 is a very important and multifaceted issue which needs a balanced and coherent approach. There is a range of factors weighing in with respect to these issues, at both the international, regional and national levels. All aspects should be considered together, not only the aspects related to intellectual property. 1073.   The COVID-19 pandemic is one of the worst health crises that the world has ever faced. Everyone is affected, but yet again we see that the most vulnerable and marginalized are disproportionately impacted. Testing, treatment and vaccines for COVID-19 should be accessible for everyone as they become available. 1074.   To achieve this objective of equitable access, Norway is heavily engaged in the ACTAccelerator – or ACT-A. Through this partnership between governments, scientists, businesses, civil society, and philanthropists and global health organizations Norway is a member of COVAX where we have pledged approximately USD 25 million (NOK 230 million) to the COVAX AMC to secure fair access to vaccines for lowincome countries. Together with President Ramaphosa of South Africa, our Prime Minister Solberg is co-chairing the ACT-A Facilitation Council where we are working to raise the necessary political awareness and finances for ACT-A. Equitable access is a top political priority for us and we hope to partner with all of you to make it a reality. 1075.   Likewise, the COVID-19 Technology Access Pool (C-TAP) will compile, in one place, pledges of commitment made under the Solidarity Call to Action to voluntarily share COVID-19 health technology related knowledge, intellectual property and data. Norway supports voluntary mechanisms for sharing of patents and we would like to encourage private companies to share COVID-19 related knowledge and patents during the pandemic. Some companies have come forward with voluntary licenses or pledged not to invoke their patent rights during the pandemic. 1076.   The TRIPS Agreement provides for minimum standards of IPRs protection, while at the same time providing for the possibility of compulsory licensing of patents under the conditions set out in the agreement, which particularly aim at providing flexibility in situations of national emergencies and extreme urgency such as the COVID-19 pandemic. Thus, this is already catered for by the TRIPS Agreement. 1077.   A balanced and coherent approach requires that both the incentives for the development of new medicines and medical products to tackle COVID-19 provided by the availability of intellectual property rights protection – as well as the need for national flexibilities to make exceptions in extreme situations, must be taken into account. The WTO system is in our view already reflecting the required balance in this respect. 1078.   To introduce even further and very broad exceptions related specifically to COVID-19 as proposed, seemingly opening for providing no IPRs protection at all for COVID-19 related products under the discretion of national authorities, would mean a setback for the incentives for innovation in the field of medicines and medical products related to COVID-19, as well as it would provide legal uncertainty with respect to what the relationship would be between such derogation provisions and the already existing provisions on compulsory licensing in TRIPS. 1079.   Against this background, Norway believes that the already existing flexibilities of the TRIPS Agreement are sufficient, and cannot support the current proposal.
84. The Chair said that this item had been put on the agenda at the request of India and South Africa; and a communication had been circulated. She invited India and South Africa to introduce their proposal.
85. The representatives of India and South Africa took the floor.
86. The Chair invited Members to take the floor.
87. The representatives of Kenya; Nigeria; Bangladesh; Sri Lanka; Pakistan; the Bolivarian Republic of Venezuela; Nepal; Philippines; Nicaragua; Chile; Turkey; Egypt; Indonesia; Argentina; Chad, on behalf of the LDC Group; China; Thailand; Tunisia; Tanzania, on behalf of the African Group; Ecuador; Senegal; Costa Rica; Mauritius; Colombia; El Salvador; Mali; Jamaica; the European Union; the United States of America; Switzerland; Japan; Norway; the United Kingdom; Brazil; Mozambique; Canada; Australia; Honduras; the Holy See; the World Health Organization (WHO) and the United Nations Programme on HIV/AIDS (UNAIDS) took the floor.
88. The Chair invited the Secretariat to share procedural requirements.
89. The representative of the Secretariat took the floor.
90. The representative of the United States of America took the floor.
91. The Chair noted that the proposal had been submitted to the Council on 2 October 2020. Thus, the 90-day time-period would expire on 31 December 2020. For practical purposes, this would mean that the last opportunity for the Council to adopt the report envisaged by Article IX:3 (b) of the Marrakech Agreement, was before the end-year-break in December. In order to facilitate reconvening the Council to consider a report in this regard, she proposed to keep the agenda item open. She encouraged Members to further consult on the proposal and explore possibilities to bridge the gap.
92. The Council took note of the statements made and agreed to keep the agenda item open.
93. At the Council for TRIPS' reconvened formal meeting of 10 December 2020, the Chair reported that, on 20 November and on 3 December, she had convened the Council in informal open-ended mode to take stock of developments since the suspension in October, and to continue the consideration of the agenda item in informal mode. At these meetings delegations had highlighted their common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations had also exchanged views, sought clarifications and provided information on the operation, implementation and impact of the requested waiver during these meetings.
94. The Chair said she also held consultations in the time-period between 26 November and 1 December, in order to seek delegations' views on (a) what kind of report the TRIPS Council could likely agree on at today's meeting, and (b) how substantive engagement could be further facilitated, given the importance of meaningful and focused discussions on the substance of the proposal. In these consultations she had detected an emerging agreement that the TRIPS Council should provide a communication to the General Council that would be neutral and factual, and reflect the state of play of discussions and the absence of consensus on the waiver proposal in the TRIPS Council at this time. Delegations had also seen a need to continue discussions on the matter within the TRIPS Council.
95. On the basis of these consultations, and after discussions in the informal open-ended meeting on 3 December, an agenda item for a status report on the consideration of the waiver request was put on the proposed agenda of the next General Council meeting scheduled for 1617 December. During the informal meeting of 3 December, the Chair had circulated draft language for such an oral status report with an invitation to Members to comment on this language by 7 December. On the basis of the comments that were received by the deadline, she had held further consultations on 8 and 9 December, and had circulated a revised draft status report.
96. In light of these informal meetings and consultations, she proposed the Council agree that she would deliver an oral status report to the General Council as follows:
At the meeting of the TRIPS Council on 15-16 October 2020, India and South Africa introduced document IP/C/W/669, requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19, which had been circulated on 2 October 2020 and has since been co-sponsored by the delegations of Kenya, Eswatini, Pakistan, Mozambique, and Bolivia. The Council continued its discussions under that agenda item at its resumed meeting on 10 December 2020.
At those meetings, and at informal meetings on 20 November and 3 December, delegations highlighted the common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations exchanged views, sought clarifications and provided information on the waiver request but could not reach consensus. Delegations indicated a need for further discussions on the waiver request and views exchanged by delegations.
This means that the TRIPS Council has not yet completed its consideration of the waiver request and may not be able to do so within the 90 days stipulated in Article IX:3 of the Marrakesh Agreement. Therefore, the TRIPS Council will continue its consideration of the waiver request and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement.
97. The Council so agreed.
98. The Chair thanked all delegations, particularly those involved in the consultations, for the constructive spirit in which they had engaged in the discussions on this report. As regards the TRIPS Council's next steps, she noted that the next regular meeting is scheduled for 1011 March 2021. In order to allow for further consideration of the waiver request in the more immediate future, she proposed that the Council reserve 19 January and 4 February 2021 for meetings of the Council that could be dedicated to the discussion of the waiver request. The next regular meeting – with the usual complete agenda – would remain scheduled for 10-11 March.
99. The Council so agreed.
100. The representatives of Malaysia, Canada, Chile, Bolivia, Sri Lanka, Chad, Norway, Turkey, Singapore, Viet Nam, Eswatini, Egypt, Indonesia, the European Union, Japan, China, the United Kingdom, Oman, Mauritius, Bolivarian Republic of Venezuela, Ukraine, the United States of America, Ecuador, the Republic of Korea, El Salvador, New Zealand, Mozambique, Brazil, Jamaica, India, Pakistan, Switzerland, Israel, Colombia, Bangladesh, Tanzania, on behalf of the African Group, Botswana, South Africa, Nepal and Vanuatu took the floor.
IP/C/M/96, IP/C/M/96/Add.1