On Friday, 19 June 2020, the World Trade Organization (WTO) convened an informal virtual Open-ended Meeting of the TRIPS Council. .
The following statements were delivered by South Africa at the virtual open-ended informal meeting of the TRIPS Council.
In relation to TRIPS flexibilities, South Africa noted:
“Given this present context of global emergency, it is important for WTO Members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines. An effective response to COVID-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need. The outbreak has led to a swift increase in global demand with many countries facing acute shortages, constraining the ability to effectively respond to the outbreak. Shortages of these products has put the lives of health and other essential workers at risk, and is also threatening to spread COVID-19 further. It is in this context that Members should assess to what extent TRIPS flexibilities can be useful to deal with the pandemic.”
“However, many developing country Member States may also face legal, technical and institutional challenges in using TRIPS flexibilities. National patent laws may not even have the necessary provisions to issue compulsory licenses in the public interest or government use licenses or where such a possibility exists, Sometimes, provisions on compulsory licensing in national legislation are subject to specific processes and as such, the issuance of compulsory license may involve lengthy processes that are time-consuming. We also note that lack domestic manufacturing capacity to produce COVID-19 related pharmaceutical products, diagnostics and other PPEs is lacking in most countries of the world, making them dependent on imports to meet their medical needs.”
In relation to domestic manufacturing capacity, South Africa highlighted the inadequacies of Article 31bis of the TRIPS Agreement intimating that it was not fit for purpose in relation to the COVID-19 response.
In this context access to Article 31bis of the TRIPS Agreement many not be effective in securing access to much needed pharmaceuticals, medical devices, diagnostics and therapeutic technologies to address the health impact of COVID-19. In this context, IP rights may constitute a barrier to the diagnosis, treatment and overall management of COVID-19 and co-morbidities. Multilateral cooperation is going to be critical in ensuring an effective response to the pandemic and may require drawing from both current and past experiences in finding an innovative solution to this unprecedented crisis. In anticipation that intellectual property may pose a barrier to access several ad-hoc unilateral initiatives have emerged. However, these initiatives, while commendable, are simply inadequate to address the IP barriers. Holders of protected technologies that are crucial in the battle against COVID-19 may not participate in such initiatives and voluntarily surrender their IP. Licenses granted under such schemes tend to limit the number of countries that can be supplied by the licensee, upper-middle income countries are often excluded. The role of governments acting in the public interest will be important to address possible obstacles to access to medicines and medical technology that could be posed by IPRs. Madam Chair, this delegation together with others also highlighted the nexus between intellectual property rights and public interest.
19 June 2020
South Africa’s interventions at the open-ended informal meeting of the TRIPS Council.
We thank you once again for convening virtual open-ended meeting and for the report of your meeting with a smaller group of members. We join others in welcoming you to the TRIPS Council.
Furthermore, we would like to thank the Secretariat for the updated report on COVID-19 measures taken in to trade-related intellectual property rights.
ITEMs 1,2&4
Madame Chair,
At the outset, we wish to align ourselves with the statement made by Jamaica on behalf of the ACP. For efficiency reasons, we will address items 1,2&4 together.
i. COVID-19
The World Health Organisation (WHO) announced it as a public health emergency of international concern on January 30, 2020 and as a pandemic on March 11, 2020. Since this time the SARS-CoV-2 has spread across the world and as of 18 June 2020, the number of fatalities linked to the virus stand at 445 535, with 8 242 999 confirmed cases. COVID-19 cases exceed 200 000 on the African continent, South Africa is the most affected, accounting for 25% of the continent’s total cases. A recent analysis by the Western Cape Department of Health (South Africa) indicate that health outcomes of 12 987 people with COVID-19 indicates that people living with HIV and people with past or current tuberculosis infections have a two- to three-times greater risk of dying of COVID-19. These data, the first to come from a country with a high burden of HIV and tuberculosis. These co-morbidities are likely to make the task of controlling the impact of COVID-19 so much more difficult.
ii. TRIPS Flexibilities
Given this present context of global emergency, it is important for WTO Members to work together to ensure that intellectual property rights such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines. An effective response to COVID-19 pandemic requires rapid access to affordable medical products including diagnostic kits, medical masks, other personal protective equipment and ventilators, as well as vaccines and medicines for the prevention and treatment of patients in dire need. The outbreak has led to a swift increase in global demand with
many countries facing acute shortages, constraining the ability to effectively respond to the outbreak. Shortages of these products has put the lives of health and other essential workers at risk, and is also threatening to spread COVID-19 further. It is in this context that Members should assess to what extent TRIPS flexibilities can be useful to deal with the pandemic. The Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) reaffirms the right of WTO Members to protect public health. It states: “We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health”.
However, many developing country Member States may also face legal, technical and institutional challenges in using TRIPS flexibilities. National patent laws may not even have the necessary provisions to issue compulsory licenses in the public interest or government use licenses or where such a possibility exists, Sometimes, provisions on compulsory licensing in national legislation are subject to specific processes and as such, the issuance of compulsory license may involve lengthy processes that are time-consuming. We also note that lack domestic manufacturing capacity to produce COVID-19 related pharmaceutical products, diagnostics and other PPEs is lacking in most countries of the world, making them dependent on imports to meet their medical needs.
iii. Domestic Manufacturing Capacity
In this context access to Article 31bis of the TRIPS Agreement many not be effective in securing access to much needed pharmaceuticals, medical devices, diagnostics and therapeutic technologies to address the health impact of COVID-19. In this context, IP rights may constitute a barrier to the diagnosis, treatment and overall management of COVID-19 and co-morbidities. Multilateral cooperation is going to be critical in ensuring an effective response to the pandemic and may require drawing from both current and past experiences in finding an innovative solution to this unprecedented crisis. In anticipation that intellectual property may pose a barrier to access several ad-hoc unilateral initiatives have emerged. However, these initiatives, while commendable, are simply inadequate to address the IP barriers. Holders of protected technologies that are crucial in the battle against COVID-19 may not participate in such initiatives and voluntarily surrender their IP. Licenses granted under such schemes tend to limit the number of countries that can be supplied by the licensee, upper-middle income countries are often excluded. The role of governments acting in the public interest will be important to address possible obstacles to access to medicines and medical technology that could be posed by IPRs. Madam Chair, this delegation together with others also highlighted the nexus between intellectual property rights and public interest.
iv. Work of the TRIPS Council
We welcome an opportunity to discuss the implications of COVID-19 in the TRIPS Council, especially in light of transparency obligations under Article 63.1.
Given the important systemic implications that COVID-19 has on our work, it would be important to keep this matter on the agenda and to give Members an opportunity to discuss measures taken, while the work that the Secretariat has undertaken in this area is useful to keep Members informed regarding the latest developments regarding the epidemic, not only in the WTO but also more broadly. Having said this, the Secretariat has a circumscribed role in how information is collected, collated and disseminated, we welcome the fact the all information contained in non-exhaustive list of COVID-measures has been verified with Members. We also support the idea of a possible seminar on COVID-19 and the impact of IPR on access to medicines.
It is important to emphasise the fact that COVID-19 goes well beyond the traditional notions flexibilities related to access to medicines. The pandemic call for a need of digital innovation, including epidemic modelling to monitor and understand the spread and development of the virus across populations, including tracking of cases and spreaders. This underscores the importance of the 1998 Work Programme on Electronic commerce, based on the existing mandate as set out in WT/L/274. We would encourage delegations to take up the crosscutting issues of ecommerce in the TRIPS Council as a matter of urgency.
In light of the above, my delegation believes there are good grounds to convene a regular meeting of the TRIPS Council as soon as possible, as other councils and committees have done, with an agenda that focus on standing items, issues underscored by ministerial mandates, as well as COVID-19 given the disproportionate effect it is likely to have on developing countries and LDCs, we further wish to emphasize that LDCs specific issues must continue to enjoy the highest priority in the TRIPS Council.
ITEM 3
The WTO General Council meeting in December 2019 agreed to take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to the Ministerial Conference decision of 18 December 2017 on “TRIPS Non-Violation and Situation Complaints” (WT/L/1033), that the TRIPS Council would continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to the 12th Ministerial Conference.
South Africa is not a proponent for the application of draft modalities in respect of NVC&S, however we remain open to discuss any ideas that delegations may have in this regard. In the past we identified a few useful elements that can inform a debate on NVC&S. We stand ready to work with other Members to advance work in this important area.
END.