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Civil society groups reject compromise proposal on TRIPS waiver

"We urge the Canadian government not to accept this proposal in its present form... but to work openly and democratically with others to fix its deficiencies."

Ottawa (04 April 2022) ─ Canadian organizations concerned with vaccine equity and the TRIPS waiver negotiations at the World Trade Organization are urging the Canadian government to not accept a compromise counterproposal negotiated by the United States, European Union, India and South Africa, but to work with WTO members to fix its deficiencies.

Public letter to government

In a recent letter dozens of civil society organizations urged Minister of International Trade Mary Ng and Minister of Innovation, Science, and Industry Francois-Philippe Champagne, to vote against the recent compromise reached among WTO members for a TRIPS waiver.

The letter was signed by 18 coalition groups comprising labour and civil society, including Trade Justice Network, Amnesty International, Canadian Centre for Policy Alternatives, Canadian Union of Public Employees (CUPE), Council of Canadians - Le Conseil des Canadiens, Oxfam, National Farmers Union, Public Service Alliance of Canada, and Réseau Québécois pour une mondialisation inclusive (RQMI).

Compromise is flawed

The reason why Canada should reject the compromise is due to the four fundamental flaws contained in the draft text.

"We urge the Canadian government not to accept this proposal in its present form if and when it comes before the WTO TRIPS Council for a vote," the letter says. Rather, they urge the government, "to work openly and democratically with council members to fix its deficiencies." 

4 flaws

The reason they urge rejection of the compromise is due to 4 flaws: 

1. Does not cover COVID tests or treatments

The proposal only covers vaccines, at a stage in the pandemic when world leaders acknowledge that testing and treatments are critically important. If this proposal is agreed, tests and treatments will ostensibly be considered 6 months later, but there are no defined conditions for this and it would have to be a separate decision of the WTO. This raises concern about the lives that will remain at risk during this period, with nearly 270,000 recorded deaths from COVID-19 in low- and lower middle-income countries in the last 6 months.

2. Does not cover all intellectual property barriers to COVID medicine access

The proposal covers only patents, and not the other categories of intellectual property addressed in the original waiver proposal: copyright, trade secrets, undisclosed data— especially clinical trial results — and industrial design. While this would help eliminate legal risk around a local producer in a developing country attempting to make use of patented information, it wouldn’t go the extra step of actively enabling and accelerating their efforts to engage in additional manufacturing. 

3. Excludes entire countries

It applies only to “developing countries” that “exported less than 10% of the world’s vaccines in 2021,” which excludes China and may also inadvertently exclude least-developed countries. This narrow scope means many countries with significant manufacturing capacity for COVID-19 vaccines will be unable to make use of the waiver. 

4. Could impose new barriers to production of generics

The proposal adds additional onerous obstacles, such as an obligation to identify all patents covered by a waiver application, when that is not required under current WTO rules. This is highly problematic and may often not even be possible since pending patent applications are not disclosed. In a pandemic, this creates unacceptable legal uncertainty for manufacturers. 

Under WTO-enforced intellectual property rules, a few pharmaceutical companies control the supplies and prices of lifesaving COVID-19–related products and have sold most vaccines and treatments to rich countries, making tens of billions in revenue from products developed with government funding. The waiver compromise, by not including treatments and diagnostics, could allow similar situations to unfold with respect to life-saving treatments. 

Don't be fooled by appearances

The compromise is viewed as inadequate by most civil society groups active in fighting for access to medicines. Canada may come under pressure at the WTO to support this flawed and insufficient proposal, simply to create the appearance of consensus and positive momentum at the WTO.

4 ways to improve the proposal

"We urge you to take a different position and actively engage WTO members to get it right," the letter reads. Accordingly, the coalition groups are urging the government to adopt the following proposals for improving the waiver proposal:

1. The waiver should apply to all products needed to prevent, treat, and contain COVID-19, including vaccines, treatments, diagnostic tests, medical devices, and personal protective equipment. 

2. The waiver should apply to all forms of intellectual property that are needed for production including: patents, trade secrets, data protection, manufacturing know-how, quality control protocols, equipment specifications, and operating instructions.  

3. The waiver should apply in all WTO member countries. 

4. Conditions in the proposal that are more onerous than current WTO provisions should be removed. 

Vaccines and treatments are "global public goods"

"By working collaboratively at the WTO to urgently remedy these flaws," the letter concludes, "Canada can help to ensure that vaccines, treatments and other pandemic-related products are treated as global public goods available to all, as Prime Minister Justin Trudeau called for in May 2020. The world has waited long enough."

For more information

For more on the TRIPS waiver