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Rethinking Trade - Season 1 Episode 30: Deep Dive: How WTO Rules Protect Big Pharma Profits

Millions of people around the world may not get COVID-19 vaccines until as late as 2024 due to World Trade Organization rules that protect medicine monopolies for the Big Pharma giants. What do these WTO rules require? How do they implicate access to essential medicines? How do countries escape these WTO-imposed barriers that protect corporate profits for vaccines developed with boatloads of tax-payer money?

On this episode, Lori gives us a guided tour through the thorny thicket of intellectual property monopolies, the “trade” agreement rules that oblige countries to enforce them and the WTO waiver needed to boost production of COVID vaccines, treatment and tests worldwide.

Learn more at rethinktrade.org.

Music: Groove Grove by Kevin MacLeod

Link: https://incompetech.filmmusic.io/song/3831-groove-grove

License: http://creativecommons.org/licenses/by/4.0/

Transcribed by Sally King

Ryan: Welcome back to Rethinking Trade where we don't just talk about trade policy, we fight to change it. I'm Ryan and I'm joined once again by our in-house trade expert, Lori Wallach. Lorie. Last week during one of our regular global trade watch meetings, you talked with us about some complex but fairly important details regarding medicine, patents, copyrights and international trade rules that impact vaccines and other medicines. This was in the context of the campaigning that we're currently doing supporting a call from over 100 nations at the World Trade Organization for a temporary emergency waiver to the WTO trips rules, which would increase global production of COVID-19 vaccines and treatments. So today, I wanted to ask you to basically give that talk again, only this time to our listeners. So if you're with me, let's take a deep dive into the world of pharmaceutical technology, patents, and copyrights.

Lori: The mission here is to get vaccines, treatments and tests to people in every country in the world. Because no one is going to be safe, the economy's not going to get back in its feet anywhere unless people are able to fight COVID everywhere. Right now there is the capacity to make about 4 billion doses of vaccine per year; 15 billion doses are needed. Governments have spent tens of billions of dollars giving it to pharmaceutical corporations to come up with vaccines. Yet the pharmaceutical corporations have monopoly control over aware how much, if the vaccines will be manufactured, where they can be sold, and at what price. And one part of the reason for this lunatic situation where dozens of countries have not had a single dose of vaccine. And many developing countries are not expected to have significant vaccination until 2024 is in part because of World Trade Organization rules in the trade-related aspects of intellectual property TRIPS agreement, these WTO rules require every signatory country to give very lengthy monopoly rights to corporations with respect to not just patents over say a medicine, but the copyright that goes to the computer program for the machine that makes the vaccine or that makes the ventilator work. And the design information about the machine that is used to do a key process and making the vaccine and what's called undisclosed information protections, which has both to do with some of the know-how about what needs to be done to make it work but also has to do with certain test information. And all of those protections are what South African and India now with 100 countries supporting them are asking is temporarily waived. So that those monopolies are suspended to the extent doing so is necessary to treat and to stop the COVID pandemic. And the campaign that's going on around the world is to get governments to support this because the WTO works by consensus. And so far the US has been one of the very few countries along with the UK, with Canada and the EU as a bloc that have been stopping this very important emergency change at the WTO and these trips rules, basically before have led to needless suffering and death. Because these extreme monopoly protections are the reason millions of people in Africa died in the 90s from AIDS. When in the US HIV diagnosis was the beginning of a chronic disease. You took antiretrovirals you had medical interventions that meant you could live a long life. And the US pharmaceutical companies wouldn't share the information. The countries in which these medicines were made fought what was then an effort to get these WTO rules suspended. And the result was millions of people died. Now in this circumstance, not only are millions of people going to die, but if we don't get this right, it's actually against our own national interest. Because if there is an outbreak of COVID any place where mutations can occur that is going to generate the variant that gets around the vaccines we've already had that puts us all back into quarantine that is more deadly but it's more infectious so really really for any of us to be safe we all need to get the vaccines the tests and the treatments.

Ryan: There's a few key terms and ideas and you talked about some of them just then Lori but maybe if you want to expand on a few of those that might help me and the listeners understand sort of the depth of what TRIPS covers when we think of medicine copyrights or medicine patent you think just oh the pill itself is patented you don't think that everything involved in dispensing it and storing it and all of these things is also covered maybe you could talk about some of that stuff and the differences between a patent and copyright when it comes to these kinds of laws. And then also i want you to get into talking about these compulsory licenses because that's a term that's being used a lot right now as some people are saying oh we can use compulsory licenses we don't need a trips waiver maybe you could talk about that and give us an understanding of what that even means how it works and if it's even applicable right now.

Lori: So one of the first things to know is that at the time i was describing with with the fight over hiv aids medications anti retrovirals typically those medicines had patents so a patents is a monopoly protection granted by a government it's like a license that protects an invention or discovery an idea effectively so if you created some new medicine and it wasn't it was what's called it's original it wasn't something someone else had done you can get this government monopoly right and a copyright protects original works of authorship so like for instance the way to think about how this comes together is at the time of the antiretroviral wto fight for hiv aids the medicines were basically protected by patents so at that time the fight was to make clear you could get what was called a compulsory license that is the ability for a government if a company will not allow a contract for a local manufacturer a monopoly patent holder you can force a license that's what a compulsory licenses you force a license and the license is literally the right to make that thing that is under the patent monopoly so let's just say I had the monopoly on come up with whatever it is medicine and you're in a different country Ryan and your country needs that you have come to me and say alright company and country a I would like this or I may be in the same country i would like to be able to make this medicine too and I would say, "Well I have a monopoly for 20 years it's a patent, go away I can charge as much as I want." And if you could prove an overriding national interest to health emergency etc, then you could go to the government say, "Hey, I've tried to get Wallach to give me this license I'm happy to pay for it but she ain't budging." And then they force it and they say, "I will grant you company, Ryan, a compulsory license to make company Wallach's drug." And the WTO fights in the early 90s was just to make clear that governments could do that because the big pharma interests were saying whoa under these WTO rules you can't even do that so the situation though got kind of more evil so the problem we have now is then there was a patent and then you would do a compulsory license if a company was being greedy. Now the companies that are what are called the originators so the companies that have made the product initially in this instance with the vaccines with literally tens of billions of taxpayer funds but related, but separate issue. So whoever has that intellectual property monopoly now their strategy has been to make what is often called a thicket of intellectual property protections. So instead of there being a patent on the medicine there is a patent on the medicine but then there is also a patent on the three precursor chemicals that were created that go into the medicine and then also the special whirlygig that you created which mixes up your components gets patented it's a machine and it's an invention and that gets patented and then you decide to make a special injector that is especially useful for this and can only your medicine can only be the shot can only be through your injector and that gets patented and then in addition your worldly gig is operated by a computer program and that gets copyrighted. And then also you have very specific rules about how the medicine can be transported and how it can be delivered and how it can be segmented and how it can be dosed. And that booklet gets copyrighted. And then in addition, you have a lot of know-how about the stuff that isn't just the recipe that isn't just here's how the machines engineering is done, that you try as these companies to get some kind of monopoly protection over as undisclosed information, you basically want to make it so it is basically nigh impossible for anyone to be able to make this but you so you control how much you control the prices. And these kind of IP thickets are what right now are like barbed wire around these vaccines. So that if these WTO rules that allow, that require all of these countries to have these rules in place, and allow this kind of mop monopoly protection, it will make it almost impossible for what needs to happen, which is production needs to be scaled up all over the world of these vaccines of these treatments of these tests. Because it's not just we need to get everyone vaccinated once it's going to be an ongoing process. And there is simply I mean, there's no way under the current paradigm, we are going to be able to get the volume, the supply, it's never the money issue. You know, a lot of the pushback from certain people in the US government officials in the US or EU is, "Oh, look, we're starting to give to these different funds that will be buying the vaccines for poor countries." And you know, it's good luck, there's nothing to buy, that's part of the problem, because the entire supply that exists is insufficient, and what is in existence has been already pre-ordered. So we have to have more made, which is why this WTO waiver covers the four different pieces of copyright because the compulsory license for a patent ain't gonna cut it, the thing that worked in the 1990s ain't gonna cut it. You have to have, to the extent it limits the treatment and crushing of COVID, you have to have temporary suspension, also of those copyright rules, as of course of the patent rules of the non disclosed information rules, you have to basically have the whole thicket, you have to have a very strong clipper to go through all that barbed wire and rip it out of the way. So more production can happen.

Ryan: How do these rules interact with our domestic laws? And what happens to them at the World Trade Organization?

Lori: So that's a very big kettle of fish generally, and as part of what is wrong with the WTO. But the short answer is the WTO has a requirement that is each country shall ensure the conformity of its domestic laws, regulations and administrative procedures, with the attached agreements. And that includes all those patents and copyright and other monopoly rules in TRIPS. So every country is obliged to have its domestic laws meet those rules. And if you don't, you can get hit with trade sanctions from another country. And also, frankly, without the blessing of the WTO, to have the changes that many countries want to make. Countries want to be able to help support domestic production, obviously, not every country can do it. But in every region of the world, there are companies in countries that could be making these vaccines and treatments and shipping in the region. And there's just endless stories of how having pharma monopoly control means no supply. There are just, you know, there's a company a very high tech company in Bangladesh, that's been begging all of the Big Pharma and Maderna and all the others to give them a license to be able to contract manufacturer, the medicine for distribution in Asia, the company that is currently having a contract with Johnson & Johnson in South Africa is obliged because Johnson & Johnson totally controls it, to export 91% of what they make to Europe, 9% can be sold in South Africa. So the keeping that monopoly control in your domestic law, when governments want to have the blessing of the WTO in the short term to take the policy changes without threat of sanction, but also effectively like the good housekeeping seal of approval, so that the pharma companies and other countries, don't threaten them with lawsuits, etc. Because you know, pharma can come into the domestic courts and say this is a violation of your obligations under the digit. They just need all of that cleared away, and honestly, also having the waivers enormous leverage, because there's been a lot of sweet-talking to Pharma, please do this please contribute that please share this and none of it's happened. None of it's happened. And so this is the stick, right? This is the stick this is if you guys don't start doing technology transfer, then we will use the rights under this WTO waiver to just do it on our own.

Ryan: Rethinking Trade is produced by Public Citizen's Global Trade Watch. To learn more you can visit rethinktrade.org, you can also visit tradewatch.org. Stay tuned for more and thank you for listening.

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Rethinking Trade - Season 1 Episode 29: Will Biden Build Back Green, or Import Green?

Our tax dollars should support green jobs with fair wages, not a global race to the bottom that exploits workers and poisons the environment. But thanks to corporate-rigged trade policies, “Buy American” government purchasing requirements are waived to include purchases from 60 other countries. This means our tax dollars are exported instead of being recycled at home to develop electric car and domestic solar, wind and other renewable energy manufacturing.

With the COVID-19 relief bill currently being implemented and another major spending bill on the horizon, the president must take a simple but important action to keep trillions in taxpayer dollars circulating in the U.S. economy to build a green future. Thankfully, the Biden administration’s Build Back Better plan acknowledges this as a problem for both climate justice and economic justice, but obstacles still remain.

More on this subject is available here.

Transcribed by Sally King

Ryan: Welcome back to rethinking trade where we don't just talk about trade policy, we fight to change it. I'm Ryan and I'm joined once again by our in-house trade expert, Lori Wallach. Today, we're going to be talking about jobs, the climate and a major part of the Biden administration's plans for the country. Before we get into that, though, there's two things that need to be defined for me and for the listeners. The first one is Buy American. The second is industrial policy. Lori, could you give us a quick understanding of what these terms mean, in relation to the content we're about to discuss.

Lori: So Buy American is literally a statute from the FDR era, that gives preferences to domestic goods when the government spends money. So when the government procures cars or desks or paper or computers or phones, the law requires that the priority be in reinvesting our tax dollars into buying things made here, so that the money goes back into innovation and jobs in the United States. Industrial policy is a broad set of policy approaches that a government uses to incentivize the development of different sectors like manufacturing. Procurement policy, like by American is one tool of industrial policy. But other tools include tax policies. For instance, our current tax system incentivizes the offshoring of investment in jobs, you get a lower tax rate if you produce offshore, that's a choice. It's an anti-industrial policy, or sometimes industrial policy involves subsidies. So the government will give you a payment back if you buy an electric car, if you use solar on your roof, for instance, to try and incentivize certain behaviors with respect to renewable energy. And that basket of different tools many countries use and many developed countries like Germany, where its industrial policy for manufacturing, for instance, and involves tax policies involves educational policies to train workers and technical skills involves investments in research and universities involves incentives and subsidies and tax benefits to cluster different companies together so they can become a solid supply chain in a particular area. And all of those tools together are how the countries that currently are leading in different sectors have been able to do so. So the good news is that the Build Back Better plan contemplates renegotiating those parts of the trade agreements that effectively forbid us from using Buy American preferences by it's going to take a while to do that 60 countries now get that treatment, a lot of different agreements are going to need to get fixed, but a ton of money. And in fact, some of the main policy towards green energy, green auto sector infrastructure is all going to get spent is going to be allocated very quickly. And that is because there will be too big reconciliation bills, the one passed the COVID relief Bill $1.9 trillion. And the next one is going to have a lot of energy, infrastructure, etc, in it. And that is the Recovery Act, the COVID Recovery Act. And those are the two pieces of legislation that can get through the Senate with 50 votes, it's using a sort of arcane budget rule. But those are the things we know for sure are going to actually be the trains leaving the station versus the Republicans in the Senate can block a lot of other stuff. And so if the president doesn't use the authority the President has right now to do a special waiver. So that's that by American exception for all the trade women countries is not it needs to be chucked out just for the COVID spending. We can then go back and renegotiate for the regular spending the trade agreements. But in the short term, if the president doesn't use this special authority that he has, we'll end up offshoring those trillions of extra dollars including in the green energy green jobs, electric car sector instead of building instead of investing to build those sectors here. We'll just end up spending the money to import the goods from someplace else.

Ryan: You kind of hinted at some of this in what you just said. But President Biden's Build Back Better plan calls for some pretty huge investments in green technology as part of the path forward on both job creation, but also addressing some of the priority changes called for by the climate justice movement. A lot of people have observed that this is one of the closest things we've seen in a long time to having a wide-scale national industrial policy, and one that has both national and global implications. I wanted to ask you, Lori, how do Buy American rules play into the Build Back Better vision? And what are some of the critical fixes that need to be made to ensure that these rules can be used to support this initiative?

Lori: Over time, the Buy American policies that were established originally 80 years ago, have been eroded. And they've been eroded in two ways. One is that there are very loose rules about what can be considered American, you can have all the parts and components come from someplace else. And as long as it's assembled here, it qualifies under some circumstances. And so a lot of taxpayer money actually literally is being spent in goods made elsewhere. Another really big exception to the rule is that any country with which the U.S. has a certain kind of trade agreement gets treated all of its goods and services as companies get treated like they're American. So right now by American means by American plus goods from 60 other countries, it's all of Europe, it's Japan, it's Hong Kong, it's Mexico, it's Korea. And for all of those goods, there is basically offshoring of our tax dollars to buy those goods from other countries. And the hitch with the build back better plan is, it both recognizes that this is a problem, and for instance, talks about renegotiating a bunch of those trade agreement rules, which is exactly right. But the hitches a lot of the money is going to be spent through what is called the reconciliation bills, these two bills that only need 50 votes to get through the Senate are some of the only big policy bills that are going to go into place. The first one's already been passed. It's the COVID Relief Act $1.9 trillion dollars. And the next one is going to probably be focusing more on infrastructure and renewable energy. And if there's a big waiver to buy American with the trade agreements for all of that we're going to see a lot of the potential to harness that taxpayer money into a renewable energy future with good jobs being squandered.

Ryan: You were quoted in the Huffington Post recently, in an article called "How a Trade Dispute Between Two Korean Firms Could Jam Biden's Electric Car Plans." The article detailed a rather obscure case moving through the U.S. International Trade Commission's core system, that could have a big impact on some of Biden's Build Back Better plan. Maybe you can explain this case and how it shines a light on the necessity to transform our trade policies as we look towards other systemic domestic priorities.

Lori: So, the case in question is a fight between two Korean companies that make electric car batteries. And there is a piece of U.S. trade law that allows a private company to go to court and basically get an injunction a stop operating order against another company if they can argue that that other company is importing goods or is making goods that violate the intellectual property rights of the other company. So the one Korean company is saying that the other Korean company which is trying to open up an electric car battery factory in Georgia, the company number one is claiming company number two that's opening the new U.S. plant has stolen company number ones electric battery technology, and that it's violating its patent. And under this U.S. trade law, basically, the patent right of the foreign company trumps the goal of the Biden administration and getting a lot of electric vehicles and that supply chain built in the U.S., because it doesn't matter if it's a Korean company, or if it's a U.S. company, if the production is here, and the jobs are here and the supply chain is here. That helps promote what the bind administration is trying to do as far as the climate and jobs goals. So the there's been an original ruling by the International Trade Commission that is forbidding the second company to produce its electric car batteries, they can only do it for a certain number of years and then be shut down. And so there's now an effort by policymakers in Georgia and environmental groups to get the president to use authority to override the shutdown of this electric car battery plant.

Ryan: Last, Lori, for a big question. And that is, do you think the Biden administration will follow through on these promises? Or maybe more importantly, for folks listening to this podcast? What are some of the roadblocks that we need to work to transform to help clear the way?

Lori: My sense is that the administration actually intends to follow through. But it's not going to be a simple matter, because there are a lot of special interests that have enjoyed the existing system. Which is to say, obviously, the oil and gas companies have had all kinds of incentives and privileges in the tax code with subsidies, those have to be taken away. And then the green energy sector and electric car production need to be incentivized. And that's going to be a big battle. But something people can do right now is to communicate by email, by calls, if you're a user of Twitter, by Twitter, the message to your senators and your house members that you need the president to use the President's existing authority to do an emergency waiver of the trade women exception for Buy American, you don't want the big COVID relief and recovery bill money to go offshore. And you know, the easy way to say it basically is can you get the president to end the trade agreement exception for Buy American for the COVID money. That's the cleanest way to say it. So far, 13 senators and a bunch of House members have written to the president asking him to use that authority, it's very easy to do, the president just has to put a little notice in the Federal Register saying, "Hey, for this COVID money, the by American exception for trade agreements does not apply that money staying home -- we're investing at home." It's just a ploy question of getting that to be something the President actually prioritizes doing. Because if we have this unique opportunity with all these large pots of money to try and build the future green infrastructure green energy system, electric car supply chain that we need, both as a matter of having a livable planet and surviving climate catastrophe, but also to create new jobs and transition, have a just transition that takes into account people's livelihoods, then we need to have that money harness here. We've paid it in as taxpayers, we need to transform our economy, our jobs and do our part to protect the climate. And that means we need to make sure it's not all being offshored. Because, you know, the companies that got their original waiver to Buy American for the trade agreements, they always wanted to be able to get their big fat government contracts and to produce the stuff at slave wages offshore. And as a matter of climate justice and economic justice that has to end you want our tax dollars, then A: it's going to be green and B: it's going to be fair wages. So you're going to be having unions, you're gonna be making a lot of it at home, you're not going to be racing to the bottom, and we have control over that. And it's worth talking to members of Congress about that right now because the money starting to move.

Ryan: Rethinking trade is produced by Public Citizens Global Trade Watch. To learn more, you can visit rethinktrade.org You can also visit tradewatch.org. Stay tuned for more and thank you for listening

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Public Health and Big Pharma Monopoly Protections: Why a WTO Waiver on IP Rules Is of the Essence

By Daniel Rangel

With growing momentum behind the global campaign for a temporary, emergency waiver of some of the World Trade Organization’s (WTO) intellectual property (IP) to boost production of COVID-19 vaccines, treatments and tests, the pharmaceutical industry is arguing the initiative is not necessary or helpful. These claims, while not original, are still worth debunking, given they distract from the mission at hand: removing legal and political obstacles to scale up manufacturing of the critical goods we need to combat a raging pandemic.

There are several accounts that thoroughly explain why waiving certain provisions of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is critical and how it could contribute, along with other efforts, to ramping up production of vaccines, treatments, diagnostic tests and equipment so that we can end the pandemic as quickly as possible. (You can see our contribution here.)

The IP-maximalists — the usual Pharma CEOs and various associations and spokespeople — started from the old hymnal: (i) IP is not really an obstacle, (ii) developing countries do not have the capacity to produce and (iii) TRIPS has incorporated flexibilities that allow countries to balance their public health needs with the IP protection.

This December 2020 brief from Doctors Without Borders does a nice job taking down these “myths.” However, as these claims have been disproved, some new arguments are rising.

One theme is that the TRIPS waiver would not be enough to make a difference, and thus countries would fare better if they focused their efforts elsewhere, such as on COVAX. (While COVAX is an important initiative, its reach should not be overstated. If it has the funds and vaccines supply to reach its most ambitious goal, COVAX would cover the 20% most at-risk portions of low- and middle-income countries’ populations. That is far below the percentage needed to achieve herd immunity and crush the virus.)

Why would the TRIPS waiver not be enough to make a difference? Because countries would need to make swift changes to their own laws, which would be difficult, if not impossible, this argument goes. It’s a rather odd argument, given that more than 100 countries are supporting the WTO proposal precisely because they want to adjust their domestic IP policies and practices in the face of the pandemic. A major point of the waiver is to gain policy space to act without the risk of facing a WTO challenge and legal defense expenses or other WTO nations’ sanctions.

Countries, faced with the COVID-19 disaster, have not hesitated to act swiftly and enact all sorts of measures to deal either with the public health crisis or the struggling states of their economies, as documented by COVID AMP, a project led by the Georgetown University Center for Global Health Science and Security, that tracks policies taken in response to the pandemic. Countries have enacted nearly 250 pieces of legislation, at the national level, to adjust their legal frameworks to make them more suited to the innumerable challenges posed by the pandemic.

Parliaments around the world have adopted legislation to approve unprecedent fiscal stimulus packages; compel health providers to serve everyone, without delay and free of charge; allow health authorities to restrict large gatherings, sport events and commercial activities; ban financial intermediaries from collecting debt; and impose national mask-wearing mandates. After all of that, making changes to intellectual property regimes so as to ensure the public has access to vaccines, treatments and tests to crush the pandemic hardly seems impossible, especially if the right message is sent from the WTO.

In fact, rich countries, such as Canada, Germany and France, already passed legislation streamlining and expediting the process for getting compulsory licenses for patented inventions. Notably, Canada — a country that has opposed the WTO TRIPS waiver — reformed its Patent Act in March 2020, as a part of its COVID-19 Emergency Response Act, to expand the federal government’s power to authorize a compulsory licensing system in the context of a national health emergency to facilitate production and sale of patented products without having to seek authorization from the patent holder and regardless of its capacity to satisfy the domestic demand.

Unlike many developing countries that are largely deprived from access to COVID medical goods, Canada has ample legal resources to battle out at the WTO whether this new policy complies with TRIPS requirements for compulsory licensing. But most low- and middle-income countries that support the waiver proposal and that now have no or very limited vaccine access have neither the legal capacity nor the political clout to do as Canada has. Indeed, when these very countries have tried to use the existing flexibilities in the WTO TRIPS Agreement, they are often bullied by the United States or the European Union to alter their plans or face trade disputes and sanctions. This is why a waiver that defangs the usual legal and power plays both is the necessary signal for developing countries and their manufacturers to invest and act.

Perhaps more importantly, as Doctors Without Borders noted, even with this new legislation, Canada was not able to convince or compel COVID-19 vaccine developers to manufacture doses in its territory while it was negotiating its purchasing agreements. This leads to a major point: even for a country like Canada that has the legal capacity and political clout to expand its legislation on compulsory licensing, the existing TRIPS flexibilities — which are expressed domestically in the form of compulsory licensing systems for patented inventions — are just not enough to overcome the myriad of challenges that countries are facing to kickstart COVID-19 vaccine production in their territories. Challenges go from the thicket of patents covering every step of vaccine development and manufacturing to the undeniable need of knowledge and technology transfer from vaccine developers to manufacturers around the world, to the sizable investments required to retool existing facilities and create new ones. Whereas the waiver, as opposed to the current flexibilities, would allow countries to undertake actions to get rid of the first challenge, there are clearly more steps required to deal with the second and third ones.

There is much that could be said about these issues, and they probably warrant a different entry on this blog. For the purposes of this piece, it is enough to clarify that the waiver would give every country, but particularly those in the developing world, the policy space needed to undertake bold legislative and administrative action, which could be crucial to expand vaccine production wherever it is technically feasible. 

The latest “novel” argument against the waiver is that many developing countries have entered into free trade agreements (FTAs) with TRIPS-plus obligations, i.e., terms that require governments to provide Pharma firms protections beyond those afforded by the TRIPS Agreement. This indeed is a problem, one that arises when — behind the façade of trade liberalization — countries enter into “trade” deals full of provisions that are not related to the exchange of goods and services across borders and instead are behind-the-doors concessions to corporate interests. For decades, civil society groups have warned of the risks that these kinds of agreements represent for the democratic debate both in developed and developing countries.

However, these FTA TRIPS-plus terms are not grounds for quashing a TRIPS waiver. Rather, the waiver would provide a foundation for FTA parties to issue démarches agreeing to equivalent temporary, emergency waivers or cease-fire agreements renouncing the use of trade-pact dispute settlement to enforce IP related to products necessary to fight the COVID-19 pandemic. Especially since a TRIPS waiver would be adopted by consensus at the WTO General Council, it’s highly unlikely that countries agreeing to waive IP rules at the multilateral level would do the opposite via bilateral deals. Attempts to do so would face global condemnation.

The truth is that South Africa and India, which initiated the waiver proposal, along with other governments, civil society groups and think tanks, have produced swaths of evidence that support the waiver. And, no one has claimed that if a WTO TRIPS waiver is approved, somehow, magically, production facilities will sprout in every country. However, the waiver is the critical first step towards boosting production. It would be pivotal to make other global initiatives work, such as the World Health Organization COVID-19 Technology Pool, and to empower countries worldwide in the colossal effort of bringing the COVID-19 pandemic to an end everywhere and for everyone.

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