A conference is underway in Switzerland that could decide access to life-saving Covid-19 medicines and diagnostics for millions across the world.

The 12th Ministerial Conference of the World Trade Organization is being held in Geneva from June 12-16 and negotiations are likely to be held on waiving intellectual property, or IP, rights on Covid-19 medical tools.

A waiver on intellectual property rights would open up the manufacturing and production processes of critical vaccines, medicines and diagnostic tools to underdeveloped and developing countries.

Patents, industrial designs, copyright and protection of information will, thus, not be a hindrance in accessing affordable healthcare.

The discussion on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, waiver for Covid-19 medical tools, comes nearly 20 months after India and South Africa first pushed for such an IP waiver.

The current draft, however, is different from what was originally proposed.

As countries try to reach a consensus over the final text, Candice Sehoma, South Africa Advocacy Officer at Médecins Sans Frontières Access Campaign, who works on the advocacy of public health policies and specialises in intellectual property, medical innovation and human rights, discusses why a waiver on intellectual property rights is being resisted by a few countries.

She also talks about the concerns several nations and advocacy groups have with the current proposal under discussion.

Candice Sehoma, South Africa Advocacy Officer at Médecins Sans Frontières Access Campaign.

What is the relevance of an intellectual property rights waiver in the present pandemic? How did the whole discussion on it begin?
So, the TRIPS waiver is a proposal put forward by South Africa and India. This was in 2020 following the realisation that low and middle-income countries are basically left alone to scramble for medical tools, be it vaccines, diagnostics or therapeutics because of a global inequity to access these medical tools.

So, they put forward this proposal to the World Trade Organization requesting them that we have a waiver on all Covid-19 medical tools. This would mean that there would be no patent on medical tools which would enable low and middle income countries to manufacture diagnostics and therapeutics.

The negotiations have been underway since 20 months now and it is still a topic of discussion at the World Trade Organization. For now, there seems to be no agreement on this particular proposal.

What are the concerns with the current TRIPS proposal being discussed at the WTO?
The current text is restrictive and far from what was originally proposed. The proposal does not cover therapeutics and diagnostics, which means new treatment drugs used for Covid-19 or diagnostic techniques are out of the ambit of an IP waiver.

We are still dealing with Covid pandemic and people are dying. There are shortages and supply issues with therapeutics and diagnostics. Despite all that, the current proposal is too narrow. It only focuses on vaccines.

The proposal states that member countries can revisit the issue [of waiver on production and distribution] of therapeutics and diagnostics after six months. But the current proposal took so long – it took 20 months to prepare – what is the guarantee that after six months we will actually move onto discussion on therapeutics and diagnostics and implement a waiver?

The proposal says that countries that have the ability to produce and export vaccines can opt out. It is a big question mark. Countries like India that have manufacturing capacity will still need to be supported, they will still need patents to be shared and made accessible to them. There is little clarity on trade secrets, which countries can opt out, and conditions on certain IP waivers.

What role does the World Trade Organization play in all this?
The WTO has member countries that will engage in a discussion on this proposal. It is a coordinating body, like a platform, where these discussions on trade could happen between various countries. But at the end of it, the WTO cannot decide on behalf of countries.

The member countries need to reach a consensus. It is not a voting process, it is a process of discussions and reaching a consensus. Each country needs to come to some kind of agreement on this proposal. If all countries support it, the IP waiver will be passed.

It seems like a difficult process for countries to engage in discussion and reach a common consensus since there are over 164 member countries and each may have vested interests.
Yes, it is a very difficult process to get all countries in support. Despite the fact that there is so much support for the TRIPS waiver from more than 100 countries, we have countries like the UK, some in the European Union, USA, that are blocking the waiver. They have not been fully supportive from the beginning. They have a completely different take to what was initially proposed.

What is currently being negotiated is not the original TRIPS waiver. It is not what South Africa and India proposed. What we see now is a limited scope of waiver. It does not include diagnostics or therapeutics, it only talks about vaccines. Certain countries may not be able to manufacture due to restrictive policy.

Why are countries in the European Union or USA resistant to an IP waiver?
I can’t speak for them. I think what they are doing is greed and lack of solidarity. The US administration has been very quiet in the negotiations. It is a signal of how they are not in full support of low-and middle-income countries. This lack of solidarity is very telling of how much they have failed us.

How is the present proposal affecting South Africa and India?
The present proposal is very limiting and that is what advocacy groups have been saying. South Africa is finding it difficult to treat patients.

The pandemic is not yet over. There is an issue of medicines and getting access to diagnostics for Covid-19 testing. It is important to look beyond vaccines.

Vaccines don’t necessarily prevent spread of infection. So if people are getting infected, we would need treatment and access to affordable options. It is important to consider other Covid-19 tools.

What are the negotiations as of now?
Some countries are pushing for [the] inclusion of diagnostics and therapeutics. This is a pressure point. Some countries are resisting it. The African side pushed to revisit the subject of inclusion of other medical tools in IP waiver. They asked to reduce [it] from six to three months. And that was not accepted by all members. There is still a push for including more IPs.

What is the way forward from here?
That is unknown at the moment. Whether an IP waiver will pass is difficult to tell. We are pushing for what we initially wanted. The developed world would drastically fail low-and middle-income countries if we agree on this current text. It is a difficult phase.

The US and the UK are blocking the waiver. What is important to highlight is that the present proposal will set a precedent for the future. If the waiver is approved in its present form, it will mean we set the bar very low.

In the next pandemic, we will still have to go through the same process and that will take away a lot of time. I mean look at what we are dealing with now 20 months after the waiver was first proposed. If we fix what needs to be fixed right now, in the event of another pandemic we will save more lives.