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Feature story |

3 reasons why the EU’s TRIPS Waiver counter-proposal is an insufficient solution in a pandemic

4 min
Photograph by Kristof Vadino
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As COVID-19 continues to devastate health systems around the globe, more and more countries have declared their support for the TRIPS waiver. Negotiations at the World Trade Organization (WTO) are now under way, yet the European Union (EU) continues to oppose the movement to remove monopolies and intellectual property protections for COVID-19 medical tools.  

Last week, the EU responded to the TRIPS waiver proposal, by putting forward their own counter-proposal for increasing access to COVID-19 medical tools. MSF is concerned that this counter-proposal is far too weak and will only serve to delay and distract from moving forward with the TRIPS waiver.  

Here are 3 reasons why the EU’s counter-proposal is insufficient: 

1) It is too limited

The EU counter-proposal only applies to patent barriers; it does not address any other intellectual property barriers such as rights to use confidential information including trade secrets, regulatory data, and biological materials.  

The EU proposal also only covers vaccines and treatments- there's no mention of other vital medical equipment that countries need to tackle the pandemic, such as tests, tools and raw materials. This simply isn't enough to justify replacing the TRIPS Waiver proposal - a concrete legal solution, which is backed by over 100 countries and covers a much wider range of intellectual property and medical tools.  

2) It relies too heavily on existing measures not fit for a pandemic 

The EU’s proposal relies too heavily on existing measures such as compulsory licensing that weren't created with a pandemic in mind and are too limited to make a difference. The EU's proposal also undermines existing TRIPS flexibilities for public health. 

Firstly, what the EU proposes isn't anything new, and countries don't need the agreement of other WTO members to issue compulsory licenses. Asking the WTO members to agree on something that already exists and doesn't actually require additional agreement, is redundant and undermines their existing freedoms. 

Secondly, the action points put forth in the counter-proposal ignore the fact that big changes are needed to make existing rules on compulsory licensing effective.  

Finally, compulsory licenses come with unnecessary delays and complications when it comes to exporting medical tools, such as strict requirements for the packaging and colour of the products. The EU’s counter-proposal does nothing to address these issues, which means it falls short of the flexibility that a global crisis of this urgency demands.  

3) It is too dependent on voluntary actions of pharmaceutical companies 

Sadly, MSF knows too well that you can't rely on the goodwill of pharma alone in a global health crisis. 

Case in point: pharma corporations were invited to join C-TAP, a World Health Organization initiative to encourage voluntary sharing of intellectual property, to allow scale-up of manufacturing and supply of COVID-19 medical tools.  

More than a year later, there are no takers.  

Voluntary-license agreements often exclude people living in certain countries that are lucrative markets for pharma corporations. These companies still control where the product is manufactured and supplied. In a pandemic, this is unacceptable. Pharma corporations shouldn't have sole power to decide who can access lifesaving medical tools during a global pandemic.  

Conclusion 

The EU has resisted the TRIPS waiver proposal for more than eight months. Since the proposal was first tabled, the pandemic has worsened and increasingly hit lower- and middle-income countries.   

Instead of realizing the urgency and joining in global solidarity, the EU has submitted a separate counter-proposal that provides nothing significantly new to address the COVID-19 pandemic, undermines countries' existing freedoms, and only serves to prevent other countries moving forward with the TRIPS waiver.  

It's time for the EU to join the 106 waiver-supporting countries around the world that have shown global solidarity and are ready to make improved access to COVID-19 medical tools a reality for everyone, everywhere.  

South African activists protest in support of the WTO TRIPS Waiver

No Patents, No Monopolies in a Pandemic

Monopolies are often an obstacle between people and the lifesaving health tools they need. Patents and other exclusivities limit supply and keep prices high.

The COVID-19 pandemic is an unprecedented global emergency.

Over 100 countries have taken an incredibly strong stance at the World Trade Organization (WTO), proposing to temporarily waive patents, trade secrets and other intellectual property (IP) on all COVID-19 medical tools.

This action could dramatically boost global production and supply of lifesaving vaccines, treatments, tests and other health tools - for everyone, everywhere.

Support this action by urging the last remaining opponents to show global solidarity and stop blocking the TRIPS Waiver!

Photo by Tadeu Andre