8 reasons why countries disagree over a WTO intellectual property waiver

UPDATES

In February it was “no sign of a breakthrough”. By mid-March there were signs
More in: ‘Quad’ raise hopes of a COVID-19 deal and revival for the beleaguered WTO

The waiver was agreed at the Ministerial Conference on June 17, 2022. The final text is here.

By Peter Ungphakorn
POSTED FEBRUARY 22, 2022 | UPDATED NOVEMBER 12, 2022

The deadlock in the World Trade Organization (WTO) over a proposal to waive intellectual property protection related to COVID-19 is now well into its second year with no sign of a breakthrough.

India and South Africa first made the proposal in October 2020. They produced a revised draft the following May, saying it was based on discussions in the months in between, but the revision produced little change in positions.

The proposal would temporarily waive countries’ obligations under WTO rules to protect some types of intellectual property, for products used to deal with COVID-19.

That’s the general idea. Every part of it is debated.

See also: WHO’s African ‘hub-and-spokes’ vaccine technology set-up

WTO COVID-19 waiver: does the new draft move the talks forward?

UPDATE
‘Quad’ raise hopes of a COVID-19 deal and revival for the beleaguered WTO
March 2022. This leads to the compromise decision, June 17, 2022, at the WTO Ministerial Conference in Geneva

THE DISCUSSIONS IN THE WTO
An overview of the discussion to February 2022 is in 8 reasons why countries disagree over a WTO intellectual property waiver
An earlier summary of how members responded to this text is in a box at the end, along with an example of the chairman’s report to the General Council.

By Peter Ungphakorn
POSTED MAY 25, 2021 | UPDATED JUNE 20, 2022

The long-awaited revised proposal related to the COVID-19 pandemic, to waive obligations on intellectual property protection, was finally circulated to members of the World Trade Organization (WTO) on May 25, 2021.

This will allow the first negotiations to proceed in the WTO’s intellectual property council since the US swung behind the idea of a waiver, if not necessarily in the form proposed. (The council’s official name is the TRIPS Council — for “trade-related aspects of intellectual property rights”.)

A closer examination of the contents shows that a lot may still have to be negotiated. In other words, this is not just about accepting or rejecting the waiver — to waive or not to waive. What is in the text and what is left out are all significant. We can expect some rough times ahead.

Voting in the WTO? It won’t happen

By Peter Ungphakorn
POSTED MAY 19, 2021 | UPDATED MARCH 25, 2022

Suddenly people are talking about voting in the World Trade Organization (WTO). Again.

Only a few months ago it was suggested as a way to break the deadlock in selecting the new director-general.

Thankfully that was settled when the new Biden administration flipped the US’s position and backed Ngozi Okonjo-Iweala.

After that, it was about the proposal to waive intellectual property obligations in the WTO related to the COVID-19 pandemic. Then it re-emerged over actions that might be taken in the WTO against Russia for invading Ukraine.

After the appointment of Okonjo-Iweala was settled, it was the US’s change of heart over the intellectual property waiver that encouraged new calls for a vote, although activists were talking about it almost as soon as the waiver was mooted. They looked at the rules, saw voting was an option, and concluded this was the best way to overcome resistance.

The proposed COVID-19 intellectual property waiver: too soon to predict

By Peter Ungphakorn
POSTED MAY 7, 2021 | UPDATED FEBRUARY 6, 2022

It’s tempting to conclude that the proposed waiver on World Trade Organization (WTO) intellectual property rules related to the COVID-19 pandemic will swiftly be agreed now that the US is supporting it.

It’s also tempting to assume that if the waiver is agreed, then intellectual property on vaccines and other COVID-19 products will be freely available and in use around the world.

Neither of those will necessarily happen, and almost certainly not quickly.

Dire WTO General Council meeting shows scale of Okonjo-Iweala’s task

By Peter Ungphakorn
POSTED MARCH 5, 2021 | UPDATED JULY 25, 2021

‘It cannot be business as usual,” she had said when she was appointed. “It cannot be business as usual,” the ambassadors had echoed as they congratulated her. And at the next opportunity they did their utmost to demonstrate the exact opposite.

If Ngozi Okonjo-Iweala needed evidence of how much had to change at the World Trade Organization (WTO), her first few days as director-general offered her plenty to think about. Some who attended the WTO General Council’s first regular meeting of the year said it was one of the worst they could remember.

New WTO head’s first statements sail close to the wind

By Peter Ungphakorn
POSTED FEBRUARY 18, 2021 | UPDATED MARCH 2, 2021

‘Someone has said that the definition of madness is doing the same thing you’ve done for years.” So remarked Ngozi Okonjo-Iweala shortly after she was accepted as the World Trade Organization’s next director-general on February 15, 2021.

She was speaking in an online press conference, outlining her view of where the WTO might be heading and how she might contribute.

Her first statements shed light on her intentions at the WTO and signal possible delicate times ahead. With some forthright suggestions on issues where members are divided, her approach has risks. (See also her acceptance statement in the WTO General Council.)

Yes, the WTO needs fixing—but not the way this NY Times piece imagines

By Peter Ungphakorn
POSTED DECEMBER 27, 2020 | UPDATED DECEMBER 28, 2020

There’s a little anecdote on the World Trade Organization’s website, right at the start of “Understanding the WTO”. As the name suggests, “Understanding” is the principal explainer of how the WTO works. The anecdote goes:

Participants in a recent radio discussion on the WTO were full of ideas. The WTO should do this, the WTO should do that, they said.
     One of them finally interjected: “Wait a minute. The WTO is a table. People sit round the table and negotiate. What do you expect the table to do?”

If we keep that in mind as we read Farah Stockman’s New York Times opinion piece (“The W.T.O. Is Having a Midlife Crisis”, December 17, 2020), then it’s easier to see why so much of the piece is wrong.

The WTO’s deadlock over an intellectual property waiver for COVID-19

Update: In a remarkable turn-around on May 5, 2021, US Trade Representative Katherine Tai announced the US would support the waiver and negotiate based on a proposed text. The press release referred only to COVID-19 vaccines, not other products. Tai said:

“This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protection, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines. We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen. Those negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved.

“The Administration’s aim is to get as many safe and effective vaccines to as many people as fast as possible. As our vaccine supply for the American people is secured, the Administration will continue to ramp up its efforts — working with the private sector and all possible partners — to expand vaccine manufacturing and distribution. It will also work to increase the raw materials needed to produce those vaccines.”

More:

• After the May 2021 revised draft: WTO COVID-19 waiver: does the new draft move the talks forward?
• After the US announcement: The proposed COVID-19 intellectual property waiver: too soon to predict
• The compromise decision agreed on June 17, 2022 at the WTO Ministerial Conference in Geneva

By Peter Ungphakorn
POSTED DECEMBER 17, 2020 | UPDATED FEBRUARY 13, 2022

A petition with almost a million signatures was delivered to the World Trade Organization on December 9, 2020, calling for the WTO “to urgently ensure access to lifesaving Covid-19 vaccines, treatments and equipment for everyone in the world”.

We can overlook the fact that the WTO has no power to “ensure” anything of the kind. What the petition aimed to do was to support a proposal to waive WTO intellectual property rules temporarily where related to the COVID-19 pandemic.

The delivery was timed for the discussion the following day when members met as the Council for Trade Related Aspects of Intellectual Property Rights (the TRIPS Council). Since then, the proposal has gone nowhere.

Book review: How ‘Dialogue of the Deaf’ produced a sound tool for policy-making

By Peter Ungphakorn
POSTED HERE AUGUST 26, 2016
FIRST PUBLISHED BY IP-WATCH, OCTOBER 22, 2015

International trade agreements are sometimes demonised as the Grand Plan imposed by major powers in cahoots with multinational corporations. Intellectual property rights is a particular target, as is the case currently with the Trans-Pacific Partnership (TPP), and previously with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Watal, Jayashree and Taubman, Antony (eds), The Making of the TRIPS Agreement: Personal insights from the Uruguay Round negotiators, Geneva, World Trade Organization, 2015, pp 361 + appendixes.

Authors, and (for most) their affiliation at the time:

Antony Taubman (current WTO Secretariat), Jayashree Watal (India), Adrian Otten (GATT Secretariat), Thomas Cottier (Switzerland), John Gero (Canada), Mogens Peter Carl (EU), Matthijs Geuze (GATT Secretariat), Catherine Field (US), Thu-Lang Tran Wasescha (Switzerland), Jörg Reinbothe (EU), AV Ganesan (India), Piragibe dos Santos Tarragô (Brazil), Antonio Gustavo Trombetta (Argentina), Umi KBA Majid (Malaysia), David Fitzpatrick (Hong Kong), Hannu Wager (Nordics), Jagdish Sagar (India), Adrian Macey (New Zealand), Lars Anell (Sweden, TRIPS negotiations chair)

CHF70.– print version. Free to download here

The Making of the TRIPS Agreement, the insightful, unofficial collected memoirs of 17 of the agreement’s key authors, plus one editor, challenges that view in two ways.

WTO amendment on access to medicines faces EU conundrum

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Note: The “conundrum” was dodged on January 23, 2017 when five countries were officially announced to have ratified the amendment. The total leapt over the targeted 110 to 112. Now that the target has been reached, this blog post will no longer be updated. But the conundrum remains unresolved.

(More up-to-date information from 2023 is available here).

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By Peter Ungphakorn
FIRST PUBLISHED BY IP-WATCH, APRIL 14, 2016
REVISED AND POSTED HERE JUNE 12, 2016  |  UPDATED NOVEMBER 30, 2016

After waiting for over a decade, the World Trade Organization is finally close to achieving the first ever amendment to its rule-book, with only a handful of members still needing to formally accept new intellectual property provisions dealing with one aspect of access to medicines.