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
1180.   Canada is pleased that Members were able to reach consensus on the status report, and indeed as to the next steps in this important discussion. 1181.   Canada is confident that Members will be able to resolve any concrete obstacles identified by Members in an evidence-based and consensual manner. 1182.   Contrary to some reports, Canada has not rejected this proposal. Indeed, at the October meeting of the TRIPS Council, Canada had indicated its interest in hearing about the specific, concrete IP challenges of Members in procuring COVID-19 treatments and other related technologies. 1183.   As Canada has expressed at the October meeting of the TRIPS Council, Canada's longstanding view is that IP rights can serve as an important incentive to innovation, while ensuring that there is an appropriate balance between protecting IP rights and promoting access to medicines and other health care technologies. Canada remains of the view that the multilateral framework under the TRIPS Agreement establishes an important balance in this regard. 1184.   In particular, the TRIPS Agreement contains a number of important flexibilities that are affirmed under the Doha Declaration on the TRIPS Agreement and Public Health. Canada also notes that IP rights are only one part of a broad discussion informing the availability and accessibility of medicines; indeed, as the Doha Declaration emphasizes, the TRIPS Agreement is part of the wider national and international legal and regulatory framework to address public health problems. 1185.   Canada also has a systemic interest in upholding the international rules-based trading system with the WTO at its core. Canada is fully available and interested in hearing about concrete challenges faced by Members in addressing the pandemic, while noting our very strong preference for approaches to any trade issues that work within and leverage the international trading system to its full extent. 1186.   While Canada did hear from a few Members on concrete IP challenges in procuring COVID19 treatments and other related technologies, and Canada appreciates their engagement, no regimelevel weaknesses, obstacles or inefficiencies that would necessitate a waiver have yet been identified. Canada believes that the concerns raised can be addressed through the TRIPS Agreement itself and the flexibilities it contains, chiefly the mechanisms outlined in Articles 31 and 31bis. 1187.   Since October, Canada has heard mostly about concerns in relation to the domestic implementation of Article 31, or in relation to Article 31bis. Canada does not see these concerns as suggestive of issues with the TRIPS regime such that would necessitate a waiver. Canada remains the only Member to have used the special compulsory licensing system under Article 31bis, and can thus observe, on the basis of concrete experience, that the system worked as intended. Canada has heard that the Article 31bis system having been used only once suggests that the system is inadequate. Rather, Canada believes that this suggests that the overall TRIPS regime works well, as part of the broader international framework, and provides Members with sufficient latitude and flexibility, such that there has been limited or no need to issue compulsory licences under Article 31bis. Canada's interest in hearing about the specific, concrete IP challenges of Members, particularly now in relation to COVID-19, very much remains, as does our longstanding and steadfast commitment to balanced international IP rules and to the multilateral framework that the TRIPS Agreement provides to that end. 1188.   Canada has reviewed the patent landscape and other information provided by South Africa in document IP/C/W/670, and thanks South Africa for compiling this information. While the information provided does give some indications as to the concerns of South Africa and other Members, Canada believes that more concrete information regarding the specific IP issues faced by Members in relation to the TRIPS Agreement, including in respect of the procurement of COVID19related goods, the establishment of local production of COVID-19-related goods, and the use of the flexibilities of the TRIPS Agreement in relation to COVID-19, would be most useful in facilitating a constructive, evidence-based discussion, and in fostering mutual understanding. In particular, Canada remains interested in seeking clarification on any IP-related barriers experienced by Members related to, or arising from, the TRIPS Agreement, including with respect to the implementation of TRIPS flexibilities. 1189.   On a related note, Canada would like to take this opportunity to present, for the record, the communication from Australia, Canada, Chile and Mexico of 27 November 2020 in document IP/C/W/671, and titled Questions on Intellectual-Property Challenges Experienced by Members in Relation to COVID-19. 1190.   There is a need for a comprehensive and global response to the pandemic that leverages the entire multilateral trading system in supporting the research, development, manufacturing, and distribution of safe and effective treatments for COVID-19. This includes key initiatives such as the access to COVID-19 tools accelerator and the COVAX Facility, as well as ongoing work in the WTO and elsewhere towards safeguarding and protecting global supply chains. These and other consensus-based, multilateral solutions represent, we believe, the most effective collective response to these global challenges. 1191.   In this spirit, and with a view to promoting further dialogue, and fostering mutual understanding and evidence-based discussion, Canada and co-sponsors Australia, Chile and Mexico submitted, on 27 November 2020, a communication numbered IP/C/W/671 containing a set of questions on IP challenges experienced by Members in relation to COVID-19. This communication seeks to better understand the nature and scope of any concrete IP barriers experienced by Members related to or arising from the TRIPS Agreement such that would constitute impediments to the fight against COVID-19. The co-sponsors would welcome any responses to these questions, such as at the present meeting of the TRIPS Council or ideally in writing as WTO documents. The co-sponsors would also be pleased to answer any questions that Members may have on our communication. 1192.   We look forward to an evidence-based and fruitful discussion of these important issues, and also look forward to further exchanges in the TRIPS Council in this regard. 1193.   Canada is actively committed to a robust global effort to stop COVID-19 and address its devastating health, social, and economic impacts on people across the world. Canada has shown strong leadership in this regard, including through a contribution of CAD 120 million to the access to COVID-19 tools accelerator, which Canada co-launched with other world leaders in May 2020, a contribution of CAD 220 million to the COVAX Advance Market Commitment to purchase doses for low- and middle-income countries, and an investment of CAD 180 million to address the immediate humanitarian and development impacts of this crisis, helping communities in developing countries mitigate and address the challenges brought about by COVID-19. This funding will support programming aligned with international response plans on priorities, such as essential food security, nutrition, and education initiatives. This new financial support for international efforts to address COVID-19 is in addition to the CAD 200 million in international development assistance provided by Canada to date. 1194.   Canada remains actively committed to a robust, multifaceted, and global effort to address the pandemic, one that draws upon all of the necessary resources and tools available in the international rules-based trading system, as well as new mechanisms for global cooperation on the procurement of treatments for COVID-19. As equitable, timely, and affordable access to testing, treatments, and effective vaccines will be critical for controlling and ending this pandemic, we look forward to continued engagement with all Members of the international community, including here at the WTO, to finding solutions to these global challenges.
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