Responding to today’s ministerial decision by the World Trade Organization (WTO) on the TRIPs Agreement, Tamaryn Nelson, Amnesty International’s Researcher on Economic, Social and Cultural Rights, said:
“More than two years into the Covid-19 pandemic and the WTO still hasn’t made the changes needed to ensure everyone has access to life-saving health products when they most need them. Under the terms of this decision, hundreds of millions of people in developing countries will likely continue to be denied access to many of these products.
“This decision is unlikely to make a significant difference in global access to Covid-19 vaccines right now. And the fact that the WTO decided to postpone by six months the decision around extending the agreement to cover diagnostics and therapeutics – at this stage of the pandemic – demonstrates how the WTO is out of step with reality.
“This decision is not only a hollow response to Covid-19, but it sends the message that intellectual property rights outweigh the rights to health and life. After more than 18 months of discussion, the WTO has missed an opportunity to use its power to set global trade rules that save lives, setting a worrying precedent for international cooperation in future public health emergencies.”
The WTO’s Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement sets out minimum standards for many forms of intellectual property (IP), such as copyrights, trademarks, patents, undisclosed information (including trade secrets and test data) and anti-competitive practices.
As IP rights can create barriers to timely access to lifesaving health products the TRIPS Agreement includes safeguards known as “flexibilities” so states can amend their laws and take certain measures to address public health emergencies, such as issuing compulsory licenses that would allow a company to produce a lifesaving drug without following IP rules.
The Covid-19 pandemic has raised questions about whether the “flexibilities” are effective to address the world’s urgent needs, given that they usually apply on a country-by-country, case-by-case, and drug-by-drug basis and have onerous reporting requirements.
In October 2020, India and South Africa requested a temporary waiver (IP/C/W/669) to intellectual property protections that would allow countries to produce versions of Covid-19 products more easily. Despite receiving support from more than 100 countries, this draft has stalled due to opposition from a small number of wealthy states.
A new draft ministerial decision spearheaded by the WTO Director General (WT/MIN(22)/W/15) but largely based on proposals from the European Union, was discussed and eventually adopted at the WTO’s 12th Ministerial Conference (MC12) held from 12 to 17 June 2022. Rather than waive intellectual property protections, it provides some clarifications to current “flexibilities” and a narrow exception to an export restriction on Covid-19 vaccines for the duration of five years.