H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)

United Kingdom

15 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19

1080.   The United Kingdom would like to thank Eswatini, Kenya, India and South Africa for introducing this agenda item and giving the Council an opportunity to discuss this very important issue. 1081.   The UK has long supported affordable and equitable access to essential medicines, including in low and middle-income countries. In this vein, intellectual property rights provide incentives to create new inventions, such as life-changing vaccines, treatments, and technologies. 1082.   The UK believes that a robust and fair intellectual property system is a key part of the innovation framework that allows economies to grow, while enabling society to benefit from knowledge and ideas. 1083.   In the current pandemic, we must acknowledge the IP system is not just made up of rights, but it also contains built-in mechanisms to support the sharing and dissemination of innovation and creativity. Flexibilities such as limitations and exceptions to IP rights have already proved invaluable to the development of digital solutions to support diagnostics and treatment. Text and data mining exceptions have been used in initial research into COVID-19, including for tracking and predicting its spread and are being used in the search for treatments. 1084.   Beyond hypotheticals, we have not identified clear ways in which IP has acted as a barrier to accessing vaccines, treatments, or technologies in the global response to COVID-19. 1085.   A waiver to the IP rights set out in the TRIPS Agreement is an extreme measure to address an unproven problem. The UK is of the view that pursuing the proposed path would be counterproductive and would undermine a regime that offers solutions to the issues at hand. Rather, we should consider how to meet the objectives of prevention, containment and treatment of COVID19 as set out in the communication. 1086.   Multiple factors need to be considered to ensure equitable access for all to COVID-19 vaccines. These include increasing manufacturing and distribution capacity, measures to support or incentivise technology transfer, ensuring global supply chains remain open, and ensuring that effective platforms are utilised to voluntarily share IP and know how. 1087.   There are existing mechanisms that facilitate the sharing of IP through voluntary licensing of intellectual property. Organisations like the WHO are developing initiatives by learning lessons from these mechanisms. For example, expanding the mandate of an existing organisation such as the Medicines Patent Pool to address needs emerging from COVID-19. 1088.   The world urgently needs access for all to safe, effective, quality, and affordable vaccines, diagnostics, medicines, and other health technologies to enable an effective response to the COVID19 pandemic, which is why a strong and robust multilateral IP system that can meet this challenge is vital. 1089.   The UK has played a leading role in financing the global effort and working with our international and national partners, to identify end-to-end solutions that ensure affordable access for all and ensuring no-one is left behind, including the poorest and most vulnerable. 1090.   For example, the UK has been leading the way in delivering a multilateral solution to COVID19 vaccines, therapeutics, and diagnostics such as by committing GBP 298 million to the COVAX Advance Market Commitment (AMC), with GBP 250 million more available as "matched funding" if others commit USD 1 billion by December. We urge other Members to join the COVAX AMC in order to secure manufacturing capacity for 92 low and middle-income countries. This will support equitable access and will demonstrate that a multilateral response can rise to global challenges. 1091.   We are also committed to collaborating with public and private partners in the UK and internationally, including exploring voluntary arrangements and approaches such as non-exclusive voluntary licensing which promote affordable access for all while also providing incentives to create new inventions, to accelerate development and equitable access in all countries to affordable health technologies for responding to COVID-19. 1092.   We would like to encourage active dialogue between industry and governments to explore how best to work together to prevent, contain and treat COVID-19, including by using TRIPScompliant licensing models in developing countries. While we welcome discussion of this issue and acknowledge the concerns of the co-sponsors as set out in their communication, we do not consider a waiver of the TRIPS Agreement to be an effective way to achieve the objectives outlined in the communication. 1093.   As we said in the informal consultation on standing TRIPS Council matters, we would be happy to participate in a workshop or other event that can support understanding how best the IP system can meet the objectives of Members in relation to COVID-19.

The Council so agreed.

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