Who is really afraid of the TRIPS agreement? 

India has not shown the grit to fully use the inbuilt flexibilities in the WTO’s TRIPS pact to protect public health

By Latha Jishnu
Published: Friday 09 October 2020

India and South Africa have presented a draft proposal to the World Trade Organization (WTO) for waiver of some provisions of its TRIPS Agreement on intellectual property (IP) protection to fight the novel coronavirus disease (COVID-19) pandemic; it might be a good move, but begs a few questions.

On October 2, WTO published the text of a joint submission by the two countries to the WTO TRIPS Council, seeking the waiver for the prevention, containment and treatment of COVID-19. It was welcomed by public health activists who have been at the vanguard of the struggle to provide access to medicines. They have always held that patents are the major block to providing inexpensive medicines.

With the SARS-CoV-2 virus wreaking havoc across the world, the World Health Organization had put together the COVID-19 Technology Access Pool (C-TAP). It is an initiative of Costa Rica aimed at making vaccines, tests, treatments and other health technologies accessible to all to fight the pandemic.

Launched at May-end, it garnered the support of 30 countries and a clutch of international partners and institutions. But beyond the high-sounding rhetoric, nothing concrete has come of it.

The India-South Africa initiative comes as COVID-19 cases are nudging 35.35 million (October 6, 2020) and fatalities have crossed one million. What will the request for waiver do that is not already on the books? Is it likely to be any more effective than the C-TAP?

The fact is that the controversial TRIPS agreement that embedded IP rights into the trade discourse in 1995, already offers flexibilities that countries can avail to bypass to meet public health needs. A bit of history would be relevant here.

In November 2001, WTO members adopted the Doha Declaration on the TRIPS Agreement and Public Health, which is categorical that every member has the right to grant compulsory licences (CLs) and the freedom to determine the grounds upon which such licences are granted.”

The Doha Declaration did not require any amendment to the text of the TRIPS accord because the grounds for CLs were listed in the original text. The Declaration merely served to reinforce that logic.

India, as the leader of the developing world, was expected to make full use of these provisions. But it has been loath to do so for fear of upsetting the US and other big trading partners.

After issuing one CL in 2008, it has stepped back and refused to issue any more. This is despite the urgent need to provide life-saving drugs at a reasonable cost to a people who are forced to bear the brunt of medical expenses. 

Distinguished jurist Prabha Sridevan, who served as judge of the Madras High Court and chair of the Intellectual Property Appellate Board, wrote recently in reference to the TRIPS waivers that “however good a covenant or instrument may be, if those who are implementing it are not good, it will prove to be bad. However bad that covenant or statute may be, if those implementing it are good, it will prove to be good.”

More pertinently, since the onset of the pandemic, a number of countries have passed legislation that allows them to override patents should they be an obstacle to ensuring adequate supplies of products needed to fight Covid-19. Who is really afraid of the TRIPS accord?

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