Canada should reject compromise proposal on TRIPS waiver in its present form: civil society groups
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.
For more on the TRIPS waiver, see https://policyalternatives.ca/newsroom/updates/trips-covid-19-waiver.
March 25, 2022
The Honourable Mary Ng, Minister of International Trade
The Honourable Francois-Philippe Champagne, Minister of Innovation, Science and Industry
Parliament Hill, Wellington St
Ottawa, ON K1A 0A9
Re: Compromise proposal on TRIPS waiver
Dear Ministers Ng and Champagne,
Since October 2020, our organizations—together with the 80+ members of the People’s Vaccine Alliance—have supported the proposal from South Africa and India to waive WTO-protected and enforced intellectual property rights on COVID-19 vaccines, treatments, diagnostics and medical equipment. Individually and collectively, we have written to you on numerous occasions urging the Canadian government to embrace the temporary removal of intellectual property-related barriers as part of an urgent, equitable response to the ongoing COVID-19 pandemic—recognizing that these barriers also stand in the way of the world’s ability to respond collectively to future pandemics.
We are disappointed that Canada did not support this proposal from the beginning, but we note your government’s stated aim to work constructively to find a consensus-based solution at the World Trade Organization that would be acceptable to all member countries. You have surely seen by now that after 18 months of talks on the waiver proposal, a document has been published proposing a compromise agreement negotiated by the United States, the European Union, South Africa and India (the QUAD). These countries do not appear to have agreed yet on the compromise proposal.
In our view, the document is only a very small step forward. We are concerned by the numerous flaws that the draft text contains, which could severely limit its impact. 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, but to work openly and democratically with council members to fix its deficiencies.
Specifically, we draw your attention to the following flaws in the compromise proposal from the QUAD countries:
- It 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 six months later, but there are no defined conditions for this and it would have to be a separate decision of the WTO. We are concerned 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.
- It does not cover all of the 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.
- It 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.
- It 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.
In the countries that initiated the TRIPS waiver, the QUAD text 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. We urge you to take a different position and actively engage WTO members to get it right. We strongly encourage your government to make the following proposals for improving the waiver proposal from the QUAD countries:
- 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.
- 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.
- The waiver should apply in all WTO member countries.
- Conditions in the proposal that are more onerous than current WTO provisions should be removed. The waiver should ease rather than add to current rules.
Your government has stated that it would work constructively to find a consensus-based waiver text that would be acceptable to all member countries. By working collaboratively at the WTO to urgently remedy these flaws, 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.
Amnesty International Canada
Amnistie internationale Canada francophone
Canadian Centre for Policy Alternatives
Canadian Fair Trade Network (CFTN)
Canadian Union of Public Employees (CUPE)
Council of Canadians – Le Conseil des Canadiens
HIV Legal Network
National Farmers Union
Partners In Health Canada
Public Service Alliance of Canada
Trade Justice Network
Réseau québécois pour une mondialisation inclusive (RQMI)
University Advisory Council—Canadian Association for Global Health
Randy Hoback, Conservative Shadow Minister for International Trade
Gérard Deltell, Conservative Shadow Minister for Innovation, Science and Industry
Brian Masse, NDP Critic for Innovation, Science and Industry, and International Trade
Elizabeth May: Parliamentary Leader of the Green Party of Canada
Simon-Pierre Savard-Tremblay, Bloc Québécois Critic for International Trade
Sébastien Lemire, Bloc Québécois Critic for Industry