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

H.E. Ambassador Xolelwa Mlumbi-Peter
12 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19
341.   Further to the TRIPS Council's status report delivered at last week's meeting of the General Council, Canada is pleased to see that Members were able to agree on a way ahead for this important discussion. Canada remains fully committed to identifying consensus-based solutions to any specific IP challenges experienced by Members, related to or arising from the TRIPS Agreement, in their responses to COVID-19, and is pleased to continue to take part in this discussion, as part of the broad multilateral effort toward addressing the COVID-19 pandemic. 342.   As the world continues to contend with the profound public health, economic, and social challenges caused by COVID-19, it remains important that the international community work constructively to find solutions to these obstacles, particularly at a time when advancing our shared understanding of the novel coronavirus, its treatments, and its emerging variants, will be so crucial to addressing the pandemic. 343.   Canada would like to reiterate that it has not rejected the proposed waiver from certain provisions of the TRIPS Agreement. Canada acknowledges that the global procurement and distribution of COVID-19 diagnostics, therapeutics, vaccines, devices and equipment has been, and remains, challenging for almost all Members of the international community, including in view of limited production capacity and other logistical challenges. Indeed, it is for these reasons that Canada remains interested in understanding the specific nature and scope of any concrete IP-related challenges experienced by Members, related to or arising from the TRIPS Agreement, in their responses to COVID-19, so that concrete, consensus-based solutions can be found. 344.   Canada again wishes to thank waiver proponents for their written responses to our questions in document IP/C/W/671, as circulated in January under documents IP/C/W/672 and IP/C/W/673. We also continue to take note of, with great interest, the recent indications from some Members of unused or underutilized COVID-19 vaccine production capacity. As we have encouraged in recent TRIPS Council meetings, Canada would invite Members to identify any unused or underutilized facilities that can produce COVID-19 vaccines, and particularly those that are available and actively seeking in-licencing opportunities, so that discussions with vaccine developers can be advanced. Canada also remains interested in any indication by Members with unused or underutilized production capacity of whether and/or why licencing efforts have so far proven unsuccessful, including the identification, in these instances, of any IP-related challenges arising from or related to the TRIPS Agreement, and that Members could not address through existing TRIPS flexibilities. 345.   Identifying any trade-related impediments to the utilization of production capacity and the scaling up of vaccine production, as well as to the production and distribution of other COVID19related medical products, will remain essential to finding consensus-based and concrete solutions to any challenges experienced by Members. Canada therefore encourages Members to share their respective experiences in operationalizing production capacity for vaccines and/or other medical products, including any IP-related or other challenges experienced in this area, with a view to assessing the extent to which any challenges may be attributable to the TRIPS Agreement. 346.   Indeed, during the most recent TRIPS Council meeting on February 23, Canada shared its own recent experiences in this area, whereby Canada approached seven vaccine developers regarding the possibility of production in Canada. While these discussions received an assessment from vaccine developers that capacity was too limited to justify the investment of capital and expertise needed to start domestic production, Canada has now, with further investment in production capacity, been able to reach a memorandum of understanding with the U.S. company Novavax to pursue production of its COVID-19 vaccine, which is expected to begin later 2021. As noted during the 23 February 2021 meeting, it is thus Canada's considered view that IP rights have not emerged among the challenges to building our capacity to produce COVID-19 vaccines in Canada. In a similar spirit, Canada continues to welcome the sharing of other Members' experiences in their discussions with vaccine developers and licensors. 347.   With respect to the proposed TRIPS Waiver more broadly, and particularly with regard to vaccine production, Canada remains interested in understanding how a waiver would incentivize the requisite collaborative relationships between technology licensees and licensors, such that all relevant technology and related know-how can be fully engaged. In particular, we continue to note that vaccine production may not only rely on patented technology, as well as undisclosed information, some of which may be submitted to health and safety authorities to meet regulatory requirements, but also on a broad range of technical expertise, know-how and other knowledge that may also require collaboration with vaccine developers to facilitate its transfer. In other cases, where the production and scaling up of a vaccine technology is contingent only upon some form of patent freedom to operate, we remain interested in identifying any instances where holders of patents for COVID-19 vaccines have refused requests for voluntary licences, and whether and how Members have attempted, but were unable, to apply Article 31 of TRIPS to engage existing flexibilities available under this Agreement. 348.   Canada would like to thank Members for their interventions on this important topic, and for their responses so far to our questions on concrete IP-related challenges in addressing COVID19. Canada remains actively committed to a robust, multifaceted, and global effort to address the pandemic, and one that fully leverages the WTO's capacities and those of the entire multilateral system in supporting the research, development, manufacture, and distribution of safe and effective COVID-19 diagnostics, equipment, therapeutics and vaccines. As equitable, timely and affordable access to testing, treatments, and effective vaccines remains critical for controlling and ending this pandemic, Canada looks forward to continued engagement with all members of the international community, including in the WTO TRIPS Council, to finding concrete solutions to these global challenges.
52. The Chair recalled that the "Proposal for A Waiver from Certain Provisions of The TRIPS Agreement for the Prevention, Containment and Treatment of Covid-19" had been circulated by India and South Africa on 2 October 2020. It had since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, the Plurinational State of Bolivia, the Bolivarian Republic of Venezuela, Mongolia, Zimbabwe, Egypt and, most recently, by the African Group and the LDC Group.
53. At its previous meeting in February 2021, the Council had agreed to once again provide a "Status Report on the consideration by the TRIPS Council of the waiver proposal" to the General Council meeting of 1-2 March 2021. That Status Report had provided a factual overview of the waiver discussions in the Council and highlighted Members' common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all. It had reported that Members had exchanged views, asked questions, sought clarifications and provided replies, clarifications, and information, including through new documents, but had not been able to reach consensus, including on whether it was appropriate to move to text-based negotiations. Delegations had indicated a need for further discussions on the waiver request and views exchanged by delegations. The report had concluded that "[t]he TRIPS Council will therefore continue its consideration of the waiver request and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement."
54. The co-sponsors had signalled their openness to discuss the scope and duration of the waiver, as well as other questions delegations might have, in the context of text-based negotiations. Other delegations had emphasised a need for more discussions and were not ready to move towards textbased discussions. Members had also recognized the challenge arising from limited manufacturing capacity of vaccines and the inability of existing manufacturers to meet global demand. Members needed to engage in a candid and good-faith and evidence-based discussion on what was required to scale up global production in these unprecedented times of a public health crisis. She encouraged Members to engage in a result-oriented process that would contribute to an effective solution to boosting productive capacity for products that were essential to deal with COVID19 across the world. Swift action was required urgently to help scale up COVID-19 vaccine production and distribution. The Council needed to shift gears and move towards a solution-oriented discussion. The world was in desperate need for solutions. She urged delegations to work together and engage with this purpose in mind.
55. At the General Council meeting of 1 March 2021, the Director-General had said we need to do things differently. She had said "it cannot be business as usual. We have to change our approach from debate and rounds of questions to delivering results". She noted that she was not sensationalizing when she reminded delegations that it was a literally a life and death issue. People were dying at that very moment. She urged delegations to demonstrate their commitment to the overarching goals of universal and equitable access to COVID-19 medical products, not only in words, but through action. She wanted to remind Members of the heightened public interest and concern in this regard, that the world was watching, and that the Council should not fail.
56. There were a number of declarations and letters from civil society regarding the WTO's role in the COVID-19 pandemic, which had been made available on the WTO COVID-19 website under the section "Business/Society response". The previous day, she had received a letter from 'Global Nurses United', which would also be made available on that COVID-19 webpage.
57. She encouraged delegations to also address two issues in their interventions:
a. First, the practical question on how the Council should organize the consideration of this matter going forward. The next regular meeting of the TRIPS Council was scheduled for 89 June 2021. She encouraged delegations to share their views on how to consider the matter in the meantime, so that the Secretariat and the Chair can make any appropriate arrangements so that the Council can move swiftly to a balanced outcome and a landing zone on this urgent matter. The Secretariat had identified dates for possible additional meetings, which the incoming chair could use, depending on delegations' views; and
b. Secondly, whether and how to capture a number of shared understandings with respect to TRIPS flexibilities that had been highlighted. While Members were still discussing the waiver request, Members might wish to capture and communicate such shared understandings on the role of IP in the context of a pandemic, which could provide valuable elements for the broader understanding of the TRIPS Agreement; and might also provide positive guidance to prepare for future pandemics.
58. The representatives of India; Maldives; Zimbabwe; Qatar; Pakistan; Egypt; Nepal; Bangladesh; Vanuatu; Cuba; South Africa; Brazil; Ukraine; China; Nigeria; Mozambique; Jamaica; Tanzania, on behalf of the African Group; Chile; El Salvador; Cameroon, on behalf of the ACP Group; Colombia; New Zealand; Mongolia; Namibia; Canada; the United Kingdom; Switzerland; Japan; the European Union; Chinese Taipei; Indonesia; Singapore; Australia; the United States of America; and the World Health Organization took the floor.
59. The Council took note of the statements made and agreed to revert to the matter at its next meeting.
IP/C/M/98, IP/C/M/98/Add.1