The story so far
What is being negotiated?
In October 2020, half a year into the COVID-19 pandemic that has now claimed over six million lives, India and South Africa proposed a waiver to temporarily remove intellectual property (IP) challenges related to COVID-19 medical tools, to facilitate more independent production and supply to address rapidly increasing global needs.
Over the following months, the waiver proposal gathered the support of over 100 governments at the World Trade Organization (WTO).
However, despite the global health emergency, countries with strong pharmaceutical sectors, most notably the UK, Switzerland and some countries in the European Union (EU), were positioned firmly against the waiver and negotiations stalled. The United States (US) has expressed support for a waiver but limited only to COVID-19 vaccines. Over two years after the declaration of the pandemic, there is still no waiver agreement at the WTO.
In the meantime, we have witnessed how the global response to the pandemic has failed to address the deep inequities in access to COVID-19 vaccines and affordable versions of new promising treatments.
What is the proposed waiver text about?
In mid-March 2022, news outlets reported that a draft text was being discussed among the EU, US, India and South Africa.
Our team has analysed the reported text and believe that it will not lead to improving people’s access to COVID-19 medical tools.
Why we are asking governments at the WTO to reject this text
Several United Nations (UN) agencies such as the World Health Organization (WHO) and UNAIDS, as well as prominent leaders and scholars, have pointed out the deficiency of the draft text and have urged WTO members to reject it.
In MSF’s 50-year experience as medical care providers in low- and middle-income countries, we have witnessed over and over again how delays in access to lifesaving medicines because of IP barriers can cost lives.
The proposed text does not offer a meaningful solution to removing IP barriers that have hindered production and supply of essential COVID-19 medical tools. In fact, the text is likely to set a negative precedent, if it moves forward without substantive revisions, by introducing additional requirements and complexities to functioning mechanisms that already exist.
Four key issues
There are four key problems with the proposed text that could set a negative precedent for addressing global medical-tool access during COVID-19 and future global health challenges.
1. It only includes vaccines and excludes treatments, diagnostics and other medical tools
To save more lives during a global pandemic, medical providers need access to all possible tools. The proposed text is limited to COVID-19 vaccines only. By maintaining IP barriers for treatments and diagnostics, the text sets a negative precedent for future health emergencies.
We are already seeing pharmaceutical corporations setting exorbitant prices for promising new treatments, making them unaffordable for low- and middle-income countries, while high-income countries are quickly buying up available supply.
Very recent history is repeating itself: We watched wealthier countries buy up available COVID-19 vaccines first, leaving lower-income countries to rely on donations and charity. The same pattern is emerging with the new COVID-19 treatments now being approved and rolled out.
What we ask WTO members to do: Ensure a meaningful text-negotiation outcome that covers all medical tools, not only vaccines.
2. It could exclude several low- and middle-income countries
The proposed set of eligibility criteria could exclude several low- and middle-income countries with manufacturing capacity. Failing to include all people in all countries in a pandemic would set a very negative precedent.
What we ask WTO members to do: Insist that any outcome apply to all countries, in order to scale up production and supply for the benefit all people anywhere in the world.
3. It introduces new layers of complexity to already-complicated existing mechanisms
Not only does the proposed text not offer solutions fit for a pandemic, it appears to introduce new limitations and introduce even more legal uncertainties into mechanisms already in place.
What we ask WTO members to do: Ensure any outcome does not undermine existing, previously agreed trade flexibilities.
4. It only covers patents, and fails to consider other forms of IP protections
From MSF experience, other types of IP besides patents, such as trade secrets or clinical trial data, play a major role in blocking or delaying the production and supply of more affordable medical tools. These forms of IP allow pharmaceutical corporations to maintain monopolies and prevent other manufacturers from developing and delivering alternative, affordable health products.
What we ask WTO members to do: Ensure that any outcome covers all IP barriers restricting scale-up of production and supply of needed medical tools, and is not limited to only patents.
In summary, the proposed text is not the ‘Waiver’ that more than 100 countries have supported in the past year and a half. It does not provide a meaningful solution to increasing access to lifesaving medical tools in a pandemic, given its reduced scope, exclusionary eligibility criteria, and new restrictions. Instead of offering a new solution, the proposed text mostly points to mechanisms that already exist and which have been insufficient to address people’s needs during the COVID-19 pandemic. In addition, the text narrows the scope and context of general interpretations of existing WTO rules to COVID19 only, setting a negative precedent.
We urge WTO members to reject the current text and pursue a more ambitious outcome for a game-changing waiver that supports everyone, everywhere, for all medical tools, in line with the original proposal put forward by India and South Africa.
A closer look at the draft text
The graphic below annotates all the problematic areas of the proposed text in detail.