Recently U.S. declared its support for a temporary waiver of the TRIPS agreement for COVID-19 vaccines at the WTO.
Was any TRIPS waiver offered in the past?
Aftermath the HIV/AIDS crisis in Africa in the 1990s, WTO adopted a decision in 2003 to waive certain TRIPS obligations.
This is to ensure the increase in the accessibility of medicines in countries that lacked manufacturing capability and paved way for the export of medicines to such countries.
However, this waiver was subject to several stringent requirements such:
Drugs manufactured are to be exported to that nation only;
Medicines should be easily identifiable through different colour, or shape;
Only necessary amount required to meet the requirements of the importing country are to be manufactured;
The importing country has to notify to the WTO’s TRIPS Council etc;
Such cumbersome requirements would not allowed any country to make an effective use of this waiver.
What will happen now?
The U.S.’s support of the TRIPS waiver will cause other nations like Canada and the European Union to give up their opposition.
Now the countries would now negotiate on the text of the waiver at the WTO.
This negotiation will take time as WTO is consensus-based decision-making body and there are complex issues involved.
Though U.S. will not block TRIPS waiver but it would defend the interests of its pharmaceutical corporations.
Hence developing nations should be conscious to ensure that a repeat of 2003 does not happen.
So, medicines useful in treating COVID-19 and other therapeutics must be also included in the waiver.
How to overcoming key obstacles?
The waiver of IP protection does not impose a legal requirement on pharmaceutical companies to transfer or share technology.
Individual countries may adopt coercive legal measures for a forced transfer of technology which could be draconian and counterproductive.
Therefore, governments would have to be proactive in negotiating with pharmaceutical companies to transfer technology using various legal and policy tools including financial incentives.
Finally, while a TRIPS waiver would enable countries to escape WTO obligations, it will not change the nature of domestic IP regulations.
Hence, countries should start working towards making suitable changes in their domestic legal framework to operationalise and enforce the TRIPS waiver.
Indian government can immediately put in place a team of IP lawyers who could study the various TRIPS waiver scenarios and recommend the changes to be made in the Indian legal framework.
The waiver could work only if countries simultaneously address the non-IP bottlenecks and other logistical challenges.
