A TRIPS Waiver Is Useful But Not A Magic Pill

Context: Notwithstanding the usefulness of TRIPS waiver, it would work well only if countries simultaneously address non-IP bottlenecks such as technology transfer, production constraints, and other logistical challenges.

Background on recent TRIPS waiver

• US’s support: The US finally relented and declared its support for a temporary waiver of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for COVID-19 vaccines.
• Legal backing: Article IX of the WTO Agreement allows for waiving obligations in ‘exceptional circumstances.
• Impact: This would cause other holdouts like Canada and European Union to give up their opposition.

Challenges ahead

• Bitter historical experience: Addressing HIV/AIDS crisis in Africa in the 1990s, WTO, in 2003, waived certain TRIPS obligations (providing for export of compulsory licenced products to countries that lacked manufacturing capacity) to increase the accessibility of medicines.
  • However, several stringent technical and export control requirements such as –
    • The drugs so manufactured are to be exported to that nation only;
    • The medicines should be easily identifiable through different colour or shape;
    • Only the amount necessary to meet the requirements of the importing country are to be manufactured;
    • The importing country has to notify the WTO’s TRIPS Council, etc.
• Time and procedural complexities: Even with a waiver, developed countries would resolutely defend the interests of their pharmaceutical corporations and negotiations could go long given WTO’s consensus-based decision-making process.
• Narrowing interpretation: While the US supports waiving IP on COVID-19 vaccines, India and South Africa proposed a waiver not just on vaccines but also on medicines, therapeutics and related technologies
  • Technology transfer not part of waiver: Waiving IP protection does not impose a legal requirement on pharmaceutical companies to transfer or share technology.
• Issues with domestic IP regulations: While a TRIPS waiver would enable countries to escape WTO obligations, it will not change the nature of domestic IP regulations.

Way forward

• Role of governments: In proactively negotiating and cajoling pharmaceutical companies to transfer technology using various legal and policy tools, including financial incentives.
• Initiate reforms in domestic IP legal framework: To operationalise and enforce TRIPS waiver. E.g. Constitute a high-level committee of lawyers to recommend necessary legal changes.