TWN Info Service on Trade, IP and Health
4 May 2022
Third World Network
www.twn.my

WTO Secretariat misleads on status & content of intellectual property text, perpetuates confusion

(This is an updated version of the article published in SUNS #9568 dated 4 May 2022)

Geneva, 3 May (TWN) — In a brief informal meeting of the TRIPS Council on 3 May, its new Chair, Ambassador Lansana Gberie of Sierra Leone, informed the Council that Ms Ngozi Okonjo-Iweala, the Director-General of the World Trade Organization, will share with the Council, the proposed outcome with respect to the discussions on the TRIPS Waiver proposal co-sponsored by 65 developing
countries.

In the past few months, the WTO Secretariat has been facilitating discussions among the European Union, the United States, India and South Africa.

However, there is no agreement among these so-called “Quad” members on the proposed outcome that is widely known to be drafted by the WTO Secretariat.

The WTO DG is expected to circulate the proposed outcome on her own responsibility, in the absence of agreement among the four, said people familiar with the development.

The contents of what is to be circulated are expected to resemble the contents that were contained in the leaked text posted on Statnews.com on 15 March, said one Western Quad official.

“Quad agreement” is not agreed text

Meanwhile, even though there is no agreement on the proposed outcome, its status has been mis-characterised as the “Quad’s agreement” by the WTO Secretariat to the media and the public.

However, appearing before the powerful US House Ways and Means Committee on 30 March, the US Trade Representative (USTR) told members that she is aware of the leaked text on a waiver of intellectual property but stressed that “no agreement on text has been reached”.

There is utter confusion as it has not been endorsed by all the Quad members, a Quad negotiator informed SUNS.

Only the EU has publicly endorsed the WTO Secretariat’s proposed outcome, according to some media reports.

It is unsurprising as the proposed outcome is premised on the EU’s declared positions over the past year.A confidential communication of the European Commission that motivated support from its Members for the leaked text, argued that “the basis is the same as in the draft declaration put forward by the Commission in June 2021”.

Elements of the proposed outcome read out by the TRIPS Chair during the recent informal meeting, as prepared by the Secretariat, also mis-characterized the content of the proposed outcome, for instance, by suggesting that the proposal to “limit” Article 28.1 provides additional flexibility and that a patent waiver for vaccines is being offered.

This representation is very far from the truth and reality. Experts and civil society groups globally have raised serious concerns over the contents of the WTO DG-led proposal.

There is consensus that the proposed outcome does not waive “patents” on vaccines.

Instead, it introduces further conditions and uncertainties with respect to use of non-voluntary licenses of patents (also commonly referred to as “compulsory licenses”), and contains harmful negative precedents on how to address global public health emergencies.

There is also agreement that its many shortcomings make it unsuitable for addressing global public health crises such as COVID-19.

In critiquing the proposed outcome, in his Op-ed, Ban Ki Moon, the eighth Secretary-General of the United Nations, and a Member of Club de Madrid, stated that: “It is too narrow in scope, excluding certain countries and covering only vaccines, ignoring the urgent need for other coronavirus treatments”, adding that “Worse still, rather than smooth the path for low- and middle-income countries to begin manufacturing, it adds even greater restrictions … requiring the near-impossible task of identifying and listing every patent in a vaccine, many of which are not even in the public domain. And it would even add further restrictions to the use of existing flexibilities in the WTO TRIPS agreement to produce vital generic medicines”.

“In short, it bears little resemblance to the practical and comprehensive waiver of intellectual property rules India and South Africa have proposed – and that leaders and experts across the world supported”, and “[i]n fact, it is barely a waiver at all, with elements of the intellectual property agreement actively reinforced”, he adds, further stressing that the result “will do little to improve access to vaccines and treatments.”

In a letter dated 21 March 2022, leading economists Nobel Laureate Joseph Stiglitz, Prof. Jayati Ghosh and Peter Kamalingin B. L, Pan-Africa Director, Oxfam, argued: “Developing countries have experienced the worst effects of COVID-19. The crisis is far from over as infections and deaths continue all over the world. New variants are also expected to emerge, with the potential to further devastate countries socially and economically.

“A meaningful outcome on the TRIPS Waiver proposal holds the key to promoting equitable access to the COVID- 19 medical tools that can facilitate and sustain socio-economic recovery and protect the lives and livelihoods in South Africa, India and many other developing countries.

“It is for this reason … waiver proposal … co-sponsored by 65 WTO Members and has received widespread support from the international community. In contrast […], this [leaked] text reflects the interests of multinational pharmaceutical companies in preserving the deadly status quo.”

They stressed that a “bad deal is worse than no deal”.

The TRIPS Council will meet on 6 May to discuss the text that the WTO DG will be circulating, and the TRIPS Council will also report to the General Council, which is scheduled to meet on 9-10 May.+

UPDATE: At around close of business on 3 May, the TRIPS Council Chair circulated an official communication (IP/C/W/688) containing a letter from the WTO DG, presenting the proposed outcome to the WTO membership on the DG’s own responsibility. The DG states in the letter that “What was evident was the need for additional impetus to the TRIPS waiver discussions given the impasse in the TRIPS Council. I therefore informed Members that I would be reaching out to various Ministers for needed input. In this regard, working with [Deputy DG] Gonzalez, we have tried to support an informal group of Ministers to come together around what could be a meaningful proposal, without prejudice to their respective positions, that could provide a platform to be built upon by the membership.”

Further the DG added, “I assured Members that whatever outcome emerged from this informal process would be put forward transparently to the full Membership for discussion in the TRIPS Council”.

Nowhere is there any mention of any Quad Member or their agreement on any aspect of the proposal. In addition, reference to “whatever outcome” would suggest to include outcomes that have not been agreed to.

However this did not prevent from the WTO Secretariat from issuing a public statement that misleadingly referred to the DG proposal communicated to the TRIPS Council as “Quad’s outcome document”.