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

H.E. Ambassador Dagfinn Sørli (Norway)
1.   We congratulate you on your election as the Chair of this Council. South Africa will work constructively with you during your tenure. We also would like to welcome the new co-sponsors, Namibia and Fiji. We also thank you for convening meetings in various formats and for your report on the outcomes of these consultations. South Africa supports the report to the General Council as it is a factual reflection on the state of discussions on this important issue in the TRIPS Council. 2.   As stated in the Report, the co-sponsors are continuing with the consultation process with various delegations in order to test ideas towards a revised proposal which will be submitted soon upon conclusion of these consultations. We thank the Members for availing themselves of the opportunity to engage and we hope that the revised text will provide a good basis to move to text-based negotiations which are long over-due. The circular discussions in the TRIPS Council are not helpful in facilitating a solution-oriented discussion. We can only find a pathway when we engage in textbased negotiations and this is the only way we can come up with a balanced outcome that addresses the concerns of all but delivers a global solution to this crisis. 3.   The latest figures show that we have reached 150 million COVID-19 cases and 3.2 million deaths and the numbers are rising on a daily basis. Over 1 billion doses have been administered so far, 87% of these have gone to developed countries. We heard from the Director-General of the WHO on 14 April that one in four people in developed countries have got a jab but one in 500 in poor countries have received the shot. Only 0.2% of vaccines dispensed so far are in low-income countries. This demonstrates the inequity in vaccine access. 4.   At this rate it will take years to inoculate 70% of the global population. The biggest challenge right now is limited supply. We have also heard that there is under-utilised manufacturing capacity that can be put on stream with sharing of technology and know-how. 5.   As developed countries prepare to emerge from the pandemic, much of the world is still living a nightmare. Global demand for vaccines, therapeutics such as oxygen and diagnostics dwarfs the supply. Only a handful of countries are able to manufacture these medical products, especially vaccines at the scale needed to overcome infections and deaths that are still growing—and shifting due to the emergence of viral variants. It is certainly problematic that some countries are hoarding doses , as well as critical vaccine supplies for their own domestic populations. However, a focus on hoarding alone misses the point. The more sustainable solution is global cooperation to boost supply and get the jabs on peoples` arms so as to reach global immunity. 6.   We cannot repeat the painful lessons from the early years of the AIDS response, when people in wealthier countries got back to health, while millions of people in developing countries were left behind. Governments and philanthropists worked together to scale up HIV medicines and paediatric vaccines, but the level of policy cooperation needed for COVID-19 vaccine production is, admittedly, unprecedented. 7.   Without the TRIPS waiver, it is clear to us that poorer countries will remain dependent on the charity of richer countries and their pharmaceutical industries. The Waiver will facilitate sharing of technology and know-how in a coherent, transparent and open manner to companies with idle manufacturing capacity across the world. Bilateral deals through Voluntary Licences Agreements (VLAs) have proven to be ineffective as a response thus far. 8.   The world has a normal capacity of production of 3.5 billion doses of vaccines and requires 14 billion by the end of 2021. Currently, around 55% of existing capacity is located in East Asia, 40% in Europe and North America, and less than 5% in Africa and South America. The biggest challenge is how to ramp-up and diversify production in the shortest possible time so as to effectively deal with the pandemic across the world. The production gap is most acute in Africa, a continent that imports 99% of its vaccines, according to the Africa Centres for Disease Control and Prevention (Africa CDC). COVID-19 has thus exposed the strategic vulnerabilities of many countries, especially Africa and no country or continent can solve this alone. What is required is global cooperation. 9.   The proponents of the TRIPS Waiver understand and appreciate the role of IP to research and development (R&D) and innovation, including in the context of pharmaceuticals products. However, we are also reminded by what we as the WTO membership said in the Doha Declaration on TRIPS and public health. In that Declaration we stated that "we recognize the gravity of the public health problems afflicting many developing and least developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics. We stress the need for the WTO Agreement on TRIPS to be part of the wider national and international action to address these problems. We also recognize that IP protection is important for the development of new medicines. We also recognize the concerns about its effects on prices. We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all." 10.   The United States Trade Representative (USTR) put it well in the meeting the Director-General organized on 14 April 2021 when she said "the Doha Declaration on the TRIPS Agreement and Public Health, for example, was born out of the HIV/AIDS crisis, and we all – both in government and in the private sector – need to do our parts to live up to its spirit." There is no better time to do that than now. 11.   The COVID-19 pandemic is an unprecedented global public health crisis and we need extraordinary measures and strengthened international cooperation to break the transmission chain globally. No one is safe until everyone is. Timely, affordable and equitable access is imperative for restoring economic recovery and protecting lives. Nationally focused responses, business as usual approaches and dependence on market-based solutions have proven inadequate as an effective response. 12.   We stress that the Waiver is an exceptional, temporary instrument that will unlock global production. The co-sponsors are ready to negotiate a balanced instrument that ensures that IP and innovation is utilized for the global good. We would like to emphasise that Waivers are part of the legal architecture of the WTO and granting of Waivers is nothing new in the WTO, including in the context of the TRIPS Agreement. 13.   It will ensure in accordance with the TRIPS Agreement that IP is used for the mutual benefit of producers and users of IP. For countries that do not have manufacturing capacity at all, it could open up more supply options so they do not have lock themselves to one or two companies through licensing agreements. 14.   As the UN Secretary General said on 17 February 2021, if the virus is allowed to spread like wildfire in the Global South, or parts of it, it will mutate again and again. New variants could become more transmissible, more deadly and, potentially, threaten the effectiveness of current vaccines and diagnostics. This can prolong the pandemic significantly, enabling the virus to come back to plague the Global North. It will also delay the world economic recovery. At this critical moment, vaccine equity is the biggest moral test before the global community. 15.   The scope of the Waiver has been carefully thought to ensure that it will enable production of vaccines, diagnostics and therapeutics. The scope takes into account the different aspects and categories of IP that are vital to making medical products that are a necessary response to fighting COVID-19 such as vaccines which include know-how, trade secrets, and data. Hence the importance of undisclosed information, patents, copyright, and industrial designs. 16.   As we engage in the discussion, we need to note the cost to the global economy arising from an ineffective response to the pandemic. The IMF estimates the pandemic costs the global economy USD 28 trillion in lost output by 2025. 17.   In conclusion, in relation to how we can move forward, we would welcome an opportunity to present the Revised text once concluded to Members before the formal meeting scheduled in June and we will work with you on the timing of such a meeting in May 2021.
1. The Chair said 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 in document IP/C/W/669 by India and South Africa on 2 October 2020 and had since been co-sponsored by the delegations of Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group, the LDC Group, the Maldives, Fiji and Namibia. He said the purpose of this formal meeting was threefold: first, to report on his activities since he had taken office; second, to adopt the status report to the General Council; and third, to continue consideration of the waiver proposal on the record.
2. The Chair said that, since his election at the end of the TRIPS Council meeting on 11 March, he had held a number of consultations with delegations in different formats to encourage more solutionoriented discussions and to explore in concrete terms whether a possible landing zone could exist.
3. On 24 March 2021 he had held group consultations with around 24 delegations on the waiver request and other topics where he solicited delegations' views on how to move discussions forward and find a common approach to this topic. Delegations' responses in these consultations had reiterated known positions and showed some frustration with the repetitive nature of exchanges in the recent open-ended meetings. A number of delegations had indicated a willingness to try a format of smaller consultations to address outstanding issues.
4. Following up on these indications, the Chair had held two small group consultations with 14 delegations on 12 and 13 April to permit discussing individual aspects of the waiver proposal in a smaller setting. The first session focused on "examples of IP-related challenges, including in using TRIPS flexibilities", while the second session intended to address the "operation of the proposed waiver". These discussions clearly showed delegations' agreement that production and distribution of COVID-19-related medical products, including vaccines, are facing serious challenges and that rapid scaling-up of production and ensuring safe supply of all countries is essential. Delegations also shared the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all.
5. However, delegations continued to differ on the fundamental question whether, and to what extent, intellectual property protection represents barriers or challenges to the achievement of our common objective, which could not be overcome by using the existing flexibilities. Co-sponsors were of the clear opinion that such challenges do exist and can only be effectively addressed by waiving certain TRIPS obligations. Other delegations remained unconvinced about the necessity of a waiver at the international level, with some arguing that a waiver might be counterproductive in relation to ongoing collaborative efforts.
6. He said that, in his intervention at the Director General's event "COVID-19 and Vaccine Equity: What can the WTO contribute?" on 14 April, which had been circulated to all delegations, he shared that assessment and indicated that these in his opinion, remained the key questions. In her summary of that event, the Director General also called on WTO Members to advance work in the TRIPS Council "on the waiver proposal and on incentives for research and innovation" and expressed her hope that the ideas and the open dialogue heard at the event will move us closer to agreement.
7. He said that Members had continued their consideration of the waiver request at an informal open-ended meeting on 22 April 2021. At that meeting, many exchanges had reiterated known positions regarding the role of voluntary licensing in scaling up production of vaccines, and the application of existing TRIPS flexibilities in domestic situations of vaccine shortages in the pandemic. However, the co-sponsors had also indicated that they were working on an updated waiver proposal, and that they had initiated bilateral discussions in this regard. A number of delegations also requested the Secretariat to compile data on existing and future voluntary license agreements, and on the projected and actual production of vaccine doses produced by such arrangements over time.
8. Other delegations had acknowledged the co-sponsors' responses to questions circulated in recent documents but felt that questions posed subsequently – particularly with respect to the operation of a potential waiver – remained unanswered. While these delegations had reiterated that cooperation and voluntary licensing were key to ensuring the technology transfer needed for scaling up production, they said it was equally clear that governments do play a role in facilitating such cooperation, and that the use of TRIPS flexibilities such as compulsory licensing was the sovereign right of all WTO Members. Some had considered whether there might be value in a confirmation by the TRIPS Council how these flexibilities apply in a pandemic, and in stepping up technical support for Members to use them, including by reinforcing cooperation with other international organizations on domestic implementation legislation of flexibilities. Overall, it was his impression that although significant differences remain, there was willingness on all sides to find a constructive consensual approach to these questions.
9. The Chair said that, as also foreshadowed at that informal open-ended meeting on 22 April, he had circulated draft language for an oral status report to the General Council, with an invitation to Members to comment on this language by 26 April 2021. Having received no textual comments in this regard, this draft status report had been circulated in document JOB/IP/44 on 27 April 2021, which he hoped delegations would be able to adopt at the present meeting. He informed Members that the item had also been placed on the agenda of the General Council meeting scheduled for 56 May 2021 in the usual fashion. This concluded his summary of the Council's activities since our last formal meeting.
10. Turning to the language for the oral status report to the General Council which had been circulated in document JOB/IP/44 on 27 April 2021, he said that Fiji and Namibia had recently been added as co-sponsors of the waiver proposal, and suggested that this be also reflected in the first paragraph of the status report for the purposes of accuracy.
11. He proposed the Council agree that he 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, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group and the LDC Group, the Maldives, Fiji and Namibia. The Council continued its discussions under that agenda item at informal meetings on 20 November and 3 December, as well as at its resumed meeting on 10 December 2020. Following the status report to the General Council on 16-17 December 2020, the Council continued its consideration of the waiver request at informal meetings on 19 January and 4 February 2021, and at its formal meeting on 23 February 2021. Following the status report to the General Council on 3-4 March 2021, the Council continued its consideration of the waiver request at its formal meeting on 1011 March 2021, at an informal meeting on 22 April and at its formal meeting on 30 April 2021.
At those meetings, delegations highlighted the common goal of providing timely and secure access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations exchanged views, asked questions, sought clarifications and provided replies, clarifications, and information, including through documents IP/C/W/670, IP/C/W/671, IP/C/W/672, IP/C/W/673 and IP/C/W/674, on the waiver request but could not reach consensus, including on whether it is appropriate to move to text-based negotiations. In April 2021, the co-sponsors indicated that they were considering an update of their proposal and were in the process of consulting with Members. 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. The 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.
12. The Council so agreed.
13. The Chair thanked all delegations for their support in this regard. He gave the floor to the Secretariat to react to the requests for data collection and compilation that were raised at the last informal meeting.
14. A representative of the Secretariat took the floor.
15. The Chair invited delegations to take the floor to continue their consideration of this request and the associated issues, and to share their views on how the work of the Council should be organized on this matter going forward.
16. The representatives of South Africa, Egypt, Bolivia, India, Maldives, Tanzania on behalf of the African Group, Chad on behalf of LDC Group, Pakistan, Zimbabwe, Bangladesh, Nepal, Saudi Arabia, Tunisia, Nigeria, Sri Lanka, Namibia, Fiji, China, Vanuatu, Switzerland, Paraguay, European Union, Uruguay, United Kingdom, Indonesia, Chinese Taipei, Cameroon, Singapore, New Zealand, Japan, Australia, the United States, and Angola took the floor.
17. In summing up, the Chair said that he had heard some well-known views and positions repeated also at this meeting so that the assessment of the state of play reflected in the oral status report to the General Council was indeed correct. At the same time, he also saw reason for some careful optimism, first and foremost as a result of the co-sponsors' announcement that they are considering revisions to the waiver proposal, and that they were currently consulting with other Members on the basis of such revisions. He noted the co-sponsors' request for time to continue such consultations to reflect on what they heard, and to develop a revised proposal on that basis, which – as they indicated – might be circulated in the second half of May. He said he would stay in close contact with the delegations concerned, consult them on the progress of their efforts, and would try to find a suitable timing for such a meeting, which would be communicated to all Members as it becomes clearer.
18. He noted and commended delegations on their expressed willingness to engage directly with each other - and encouraged constructive engagement on all sides in these engagements.
19. The Council took note of the statements made and agreed to revert to the matter at its next meeting.
IP/C/M/99, IP/C/M/99/Add.1