WTO finally agrees on a TRIPS deal. But not everyone is happy

After its four-day ministerial conference spilled over into a sixth day, the World Trade Organization finally arrived at an agreement on the controversial TRIPS waiver on Friday morning. After heavily contested negotiations, member states agreed on a deal that temporarily removes intellectual property barriers around patents for COVID-19 vaccines, and postpone the  discussions on extending the waiver to treatments and tests by six months.

The TRIPS waiver proposal was tabled by India and South Africa in October 2020 and sought to temporarily waive restrictions on patents and other intellectual property barriers, in a bid to speed manufacturing and ease access to lifesaving products in the midst of a pandemic.

While the final deal is at best a distant cousin of that earlier proposal, the question is: Does it deliver on any of the goals of the original proposal?

WTO Director-General Ngozi Okonjo-Iweala believes it will: “On the TRIPS waiver, now we have something in hand,” she said during the closing press conference. “It’s really exciting now to go to those factories that are starting to set up all over the developing world and start to work with them about how this will actually be made real.”

Civil society groups are not convinced.

“If you’re a country that has or is building manufacturing capacity for vaccines, it could potentially be useful if you’re exporting the predominant portion,” said Sangeeta Shashikant, a legal and policy adviser for the Third World Network. “The original proposal was much broader, more comprehensive and covered all the different medical tools. At this time, we are in need of vaccines, diagnostics, and treatments. The scope and vision of this agreement falls short.”

The five-year agreement was struck after a marathon negotiating session at the WTO’s highest meeting. It allows low- and middle-income countries to temporarily waive protections on those patents to produce the shots, either to use domestically or to send abroad. It pushes a decision on treatments and tests off by six months, though Shashikant noted that WTO is notoriously bad at sticking to its deadlines.

It also wiped away the original proposal’s calls to temporarily waive protections on trade secrets, copyrights, and industrial designs.

The new deal actually offers little that is different from exemptions already available to WTO members under existing rules, aside from a few distinctions, including simplifying some of the notification requirements.

The biggest change — and one of the most contentious points of discussion at the ministerial conference — according to observers, was the limit the new deal imposed on eligibility. Any country was able to take advantage of existing WTO flexibilities. But under the deal, export eligibility is limited to LMICs. There is also specific language, pushed by the United States, that appears to exclude China from taking advantage of the waiver.

Beijing had already made clear it would not take advantage of the agreement, so there is no immediate impact. But Shashikant said, “it sets a very harmful precedent. If you have a decision and the objective is production and supply, you want all the countries that can produce and export to be encouraged to use the decision.”

The text also includes other conditions that further narrow its already limited scope, including a prohibition on reexporting vaccines acquired under the waiver, except for humanitarian purposes.

Observers said this was at the behest of countries and regions allied to the pharmaceutical industry, including the European Union, the United Kingdom, and Switzerland, which have “tried to limit the scope, the application and the usefulness of the decision and that in the middle of a global public health emergency.”

If it was, it did not appear to assuage the pharmaceutical industry, which has opposed any effort to remove IP protections. The International Federation of Pharmaceutical Manufacturers and Associations issued a statement calling the agreement a “dangerous signal” that “incorrectly points to intellectual property (IP) as a barrier to the pandemic response rather than an enabler bringing healthcare solutions, safely and quickly to patients.”

Even the negotiations to arrive at today’s decision — which were conducted largely in secret meetings among small groups of delegates — were contentious. Though this is a traditional method of negotiation within WTO, civil society groups said delegates from the global north were disproportionately represented and their perspectives were given outsized attention.

Okonjo-Iweala said during the press conference that the format was a “creative way” of addressing the problem that many countries did not want to negotiate with Russia, following its invasion of Ukraine.

Earlier in the conference, she also hit back at coverage that declared the ministerial a failure before it began. Those weren’t the only critics she took aim at.

“The negativism is compounded by the negative advocacy of some think tanks and civil society groups here in Geneva and elsewhere who believe the WTO is not working for people,” she said in her opening statement. “This is of course not true, although we have not been able to clearly demonstrate it, but it worsens the trust deficit that I have noticed in these past 15 months.”

Today’s agreement has done little to assuage those critics.

“It is hard to imagine anything with fewer benefits than this, as a response to a massive global health emergency,” James Love, the director of Knowledge Ecology International, said in a statement. “The pressure this week is to reach a consensus in order to make multilateralism look like it works, which seems to be the main justification for producing a consensus.”

Still, today’s agreement is “a recognition that we do need to have great policy space when dealing with intellectual property barriers,” Shashikant said. “This decision sends that message that the current system has its challenges. I just think it’s a missed opportunity that we didn’t address this in a much more comprehensive way.”