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

H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)
15 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19
1287.   Japan believes that ensuring fair and equitable access to vaccines and medical treatments entire world is essential to overcome the COVID-19. To achieve this, Japan has been contributing to the framework of international multilateral cooperation to overcome COVID-19 pandemic. 1288.   On the other hand, Japan still has serious concerns about waiver proposal from India, South Africa and other co-sponsors. This delegation would not repeat our statements that were already made, but would like to point out some important points. 1289.   First, the proposed waiver would not only undermine incentives for development, but also have a negative impact on investment to increase manufacturing capacities for medicines and vaccines. The proponents have a sceptical view on the need of incentives by intellectual properties because there is a large size of investment by public funds. However, R&D in the field of infectious diseases particularly involves a great risk. For example, even when pharmaceutical companies succeed in developing effective medicines or vaccines for a virus, there is always a risk that the medicines or vaccines turn to be ineffective due to mutation of the virus. In addition, development of medicines and vaccines in a very short term needs a lot of human resources and financial investments. Given such circumstances, it is essential to maximally incentivize pharmaceutical companies and research institutes through various measures. Therefore, Members should not undermine IP protection, which is the main driving force for R&D, in order to achieve timely supply of new effective medicines and vaccines. 1290.   Second, the proponents argue that the safety and efficacy of medicines and vaccines can be guaranteed under a regulatory framework. However, in order to timely scale up the manufacturing capacity of quality and safe diagnostics, medicines and vaccines related to COVID-19, it is essential to have effective cooperation among companies, including technology transfers, while appropriate protection of intellectual properties is the prerequisite for technology transfers. Especially, building strong partnership through voluntary licensing is indispensable for production of quality and safe medical products related to COVID-19, which have been recently developed based on the latest technology in a short period of time. On the other hand, this is not always applied to a case that medical products have been in the market for a long time and knowledge and technology related to them are widely known. In this regard, innovative pharmaceutical companies and generic manufacturers clearly state that an effective and balanced intellectual property framework is a key factor to enable R&D, accelerate manufacturing scale-up, and facilitate licensing for therapeutics and vaccines. In these circumstances, the waiver proposal would impede such collaboration, and it would cause adverse effect to our common goal, which is to deliver quality and safe medical products swiftly. 1291.   Third, the scope and modalities of this waiver are unclear. The proponents must explain clearly what domestic measures the proponents would implement if the waiver were granted and how the obligations of TRIPS Agreement would prevent implementing such intended domestic measures. In this regard, the proponents insist that details of such domestic measures should be decided by each Member based on its necessity. However, the waiver without any concrete idea of its implementation would impose unacceptable uncertainty and unpredictability on the protection of intellectual property because nobody knows what will happen in such a situation. Such an uncertainty would obviously have a negative impact on economic activities for combating COVID-19, including investments for R&D and increasing manufacturing capacity of essential medical products. Furthermore, if each Member were allowed to adopt individualized domestic measures without any constraints, pharmaceutical companies would be forced to respond to such domestic measures on a countrybycountry basis. As a result, the companies would have difficulties in stably supplying medical products worldwide. 1292.   Finally, the delegation of Japan reiterates the need for all Members to have unhindered and timely access to medical products in response to COVID-19. To tackle the COVID-19 pandemic, Japan has been strengthening its capacity, in particular, to research and develop vaccines and other tools, and to ensure equitable access to those tools. Japan announced its financial commitment of approximately USD 300 million to Gavi at the Global Vaccine Summit in June 2020, and will contribute more than 130 million USD of that commitment for the COVAX Advance Market Commitment (AMC), in order to enable lower income countries to reinforce equitable access to COVID-19 vaccines. In addition, Japan will advance multilateral cooperation schemes such as ACT Accelerator and will expand the access to diagnostics through the Global Funds. Japan remains committed to combatting COVID-19, together with the international communities.
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