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In response to a question about a South African and Indian-led proposal to waive intellectual property rights for vaccine production in developing countries, European Commission trade spokesperson Miriam Garcia Ferrer told journalists that the current view of the European Union was that the problem of access to vaccines would not be resolved by waiving patent rights.
Garcia Ferrer said that the real problem lay in insufficient manufacturing capacity to produce the required quantities. The European Commission very much welcomed the statement of WTO Director-General Ngozi Okonjo-Iweala who has said there should be a third way to broaden access to vaccines through facilitating technology transfer within the multilateral rules, to encourage research and innovation while at the same time allowing licensing agreements that helped to scale up manufacturing capacities.
Garcia Ferrer said: “We are looking forward to working under her leadership to promote this collaboration between companies to enhance the technology transfer and manufacturing capacity. So just to sum up, this collaboration is happening already right now. If there will be problems in this voluntary sharing of technology, we are happy to discuss it within the WTO framework.” She acknowledged that this could ultimately include compulsory licenses of patents without the consent of the owner.
At a recent event (9 March), hosted by the UK think tank Chatham House, Director General Ngozi Okonjo-Iweala called on COVID-19 vaccine manufacturers to do more to ramp up production in developing countries to combat the vaccine supply shortage. She said co-operation on trade, and action at the WTO, would help accelerate vaccine scale-up.
Okonjo-Iweala told the Global C19 Vaccine Supply Chain and Manufacturing Summit: “It is in everyone’s self-interest to co-operate in dealing with this problem of the global commons.”
Okonjo-Iweala saw cause for hope in the first vaccine deliveries by the COVAX facility, the global mechanism for procuring and equitably distributing COVID-19 vaccines. Nevertheless, production and delivery volumes remained too low: “We have to scale up and scale out COVID-19 vaccine production, particularly in emerging markets and developing countries.”
By bringing more production online around the world, vaccine manufacturers would send a signal that they are taking action, and “that people and governments in low- and middle-income countries can expect to get access to affordable vaccines within a reasonable timeframe”.
Okonjo-Iweala observed that companies in India and elsewhere were already manufacturing COVID-19 vaccines under licence.
The WTO director general also said: “Scarcity of raw materials, shortages of qualified and experienced personnel, and supply-chain problems, are linked to export restrictions and prohibitions, as well as excessive bureaucracy. The WTO’s mandate on trade facilitation, quantitative trade restrictions, and trade policy monitoring are relevant to the latter challenges in particular.”
Nevertheless, Okonjo-Iweala noted that WTO rules do allow for export restrictions or prohibitions to be “temporarily applied to prevent or relieve critical shortages” of essential products. That said, such restrictions must be notified to all members. Restrictions should be transparent, proportionate to the problem at hand, and members should provide timelines for when they will be phased out.”
On the proposal to waive standard WTO intellectual property rules for COVID-related vaccines, therapeutics, and diagnostics, the director general put the proposal in its historic context: “Many of the proposal’s supporters are developing and least developed countries, deeply marked by the memory of unaffordable HIV/AIDS drugs. Many, many people died who should not have. More recently, they remember being left at the back of the queue for H1N1 vaccines as richer countries bought up available supplies, which in the end were not used.”
South African/Indian proposal
WTO members recently debated the proposal submitted by South Africa and India calling for a waiver from certain provisions of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement in relation to the “prevention, containment or treatment” of COVID-19. Since its submission, the proposal has received further support from Kenya, Eswatini, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt and the African Group within the WTO.
The proponents argue that the waiving of certain obligations under the agreement would facilitate access to affordable medical products and the scaling-up of manufacturing and supply of essential medical products, until widespread vaccination is in place and the majority of the world’s population is immune.
However, there is a lack of consensus and divergence on what role intellectual property plays in achieving the goal of providing timely and secure access to safe, efficacious and affordable vaccines to all. Proponents argue that existing vaccine manufacturing capacities in the developing world remained unutilized because of IP barriers. Other delegations asked for concrete examples of where IP would pose a barrier that could not be addressed by existing TRIPS flexibilities.
The outgoing chair of the TRIPS Council, Ambassador Xolelwa Mlumbi-Peter of South Africa, said swift action is urgently required to help scale up COVID-19 vaccine production and distribution. She called on members to shift gears and move towards a solution-oriented discussion.
The next regular TRIPS Council meeting is scheduled for 8-9 June, but members agreed to consider additional meetings in April in order to assess potential progress on the IP waiver discussion.
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