Letter: Launch of negotiations on TRIPS IP waiver at the WTO

MSF Southern Africa and many other civil society organisations in South Africa and India wrote to the Minister of Trade and Industry Ebrahim Patel and his counterpart in India with some input on the TRIPS waiver negotiations at the WTO with regards the proposal's scope and duration. 

May 29, 2021

Mr. Ebrahim Patel
Minister of Trade and Industry
South Africa

Mr. Piyush Goyal
Minister of Commerce & Industry
India

RE: LAUNCH OF NEGOTIATIONS ON TRIPS IP WAIVER AT THE WTO

Dear Minister Patel and Minister Goyal, 

The pandemic has resulted in 3.5 million deaths. It's over a year since the pandemic. Infections and death in developing countries are now outstripping developed countries. 

As COVID-survivors, health organisations, and civil society in South Africa and India, we write to you to acknowledge the leadership and efforts made by the governments to convince WTO member countries to engage in text-based negotiations on the TRIPS Waiver proposal. The proposal has received worldwide public support from ordinary people, Unions, international NGOs, WHO, Nobel laureates, and civil society.  

In the past decade, the entry of affordable generic antiretrovirals in the supply chain helped save millions of lives across developing countries, including South Africa and India. Once again, we call on you to represent, protect the public interest and ordinary people in these crucial negotiations in the WTO to waive IP.  

The coming months of negotiations will bring extraordinary pressure from the multi-national pharmaceutical industry and some WTO Members to delay, block and dilute the proposal. 

We highlight some of the critical areas: 

• Scope of the Waiver 

In the upcoming negotiations, attempts to restrict the scope of the Waiver to vaccines should be rejected. Experience in public health has taught us that testing and treating are essential strategies for infectious diseases alongside vaccination. THEREFORE, the TRIPS Waiver must cover new medicines, the diagnostic tests needed to detect outbreaks and variants, ventilators, and other medical goods necessary to save the lives of the millions who will contract COVID-19 before global herd immunity is achieved. 

• IP barriers Beyond Patents

The TRIPS Waiver proposal has finally brought recognition for the first time to IP barriers (beyond patents) such as protection of trade secrets that impedes the early entry of follow-on manufacturers for biotherapeutics, vaccines, and other health technologies. Often regulatory information related to the manufacturing process of vaccines and biotherapeutics is available to the drug regulator but not disclosed, even when required in the public interest. The sharing of such data by the regulator could accelerate the regulatory approval of non-originator vaccines and biotherapeutics, in the absence of which the follow-on manufacturer repeats the clinical studies that delay competition. WE REQUEST that negotiators ensure that all forms of IP that can hinder production, supply, and access, i.e., patents, protection of undisclosed information, copyright, and industrial designs, are waived in the final text.  

• Duration of Waiver

A waiver must be of sufficient duration to overcome the challenges of Covid-19. There are many uncertainties associated with Covid-19 with the continuous emergence of new variants and the treatment gaps that its spread within communities has raised. This may require vaccinations annually even as vaccine production and supply for developing countries remains low and unpredictable as high-income countries prioritize vaccinating their populations. The duration should create an environment to scale up and sustain increases in manufacturing capacity for vaccines, medicines, and other medical goods for COVID-19 and their materials and components. In this context, we support the call for a "practical and flexible" duration as mentioned in the proposal.  However, the revised text proposes a minimum period of 3 years, and we are concerned that this duration may not be sufficient to address the pandemic. HENCE we call on you to work in the negotiations for a duration which is a minimum period of 5 years.  

There will be several attempts to delay negotiations and frustrate co-sponsor countries with protracted negotiations. India and South Africa should raise formal concerns that the WTO Director ' 'General's November 2021 deadline for a final waiver text is far too late to meet the urgency of the pandemic, which requires agreement on a waiver in a matter of weeks, not months.

Finally, we seek complete transparency from our governments and regular briefings on the progress and developments in the negotiations. 

We look forward to working with you in the coming weeks on the TRIPS Waiver. 

Sincerely, 

Active Citizens Movement, Durban (South Africa)
African Alliance
African Centre for Biodiversity –ACB (South Africa)
Ahmed Kathrada Foundation (South Africa)
Anand Grover, UN Special Rapporteurs on the Right to Health, (August 2008-July 2014)
Anglican Church of South Africa
Archbishop Makgoba (South Africa)
C19 People's Vaccine Coalition, South Africa
Blessi Kumar, Covid-19 Survivor/ Public Health focus on TB (India)
Cancer Alliance, South Africa
Centre for Development Alternatives (India)
Centre for Health and Resource Management (India)
Community representatives ACT-A Facilitation Council (Kenya)
Campaign 4 Access 2 Medicines, Diagnostics and Devices, India
Drug Action Forum-Karnataka (India)
Dr Mira Shiva (India)
Defend our Democracy Campaign – NW Interim Coordinating Committee (South Africa)
Eldred Tellis (COVID-19 survivor, India)
Ganesh Acharya, HIV/TB Activist, Mumbai (India) 
Gandhi Development Trust (South Africa)
Global Coalition of TB Activists (India)
Global Network of People living with HIV - GNP+ 
Group of 80+, SA-Affiliated Academics and Researchers (South Africa)
Gramin Samaj Kalyan Vikas Manch - GSKVM (India)
Happy to Help Foundation
Health Justice Initiative (South Africa)
Health, Ethics and Law Institute (India)
Health GAP (Global Access Project)
Institute for Economic Justice (South Africa)
Initiative for Health & Equity in Society (India)
Institute of Development Studies, UK
Jan Swasthya Abhiyan National Network Working for Health Rights (India)
Johannesburg Against Injustice (South Africa)
Khulumani Support Group (South Africa)
Lawyers Collective (India)
Leena Menghaney ((COVID-19 survivor, India)
Midlands Hindu Society Moments (South Africa)
Malebakeng Forere, University of the Witwatersrand (South Africa) 
Moments (NGO, South Africa)
Medecins Sans Frontieres – South Africa
National Alliance of People's Movements (India)
The National Labour and Economic Development Institute – NALEDI (South Africa)
Occupational Medicine, University of Cape Town (South Africa)
Open Secrets, South Africa
People's Health Movement (South Africa)
Phoenix Child and Family Welfare Society (South Africa)
Phoenix Community Centre Promoting a Clean, Green and Healthy Environment (South Africa)
Priyam Cherian, IP Lawyer (India)
ReCreate -a coalition of creatives and communities (South Africa) 
Rhodes University, South Africa
Roshan Joseph, Trade and IP Lawyer/ COVID-19 Survivor (India)
Sama Resource Group for Women and Health (India)
Sangram (India)
Sankalp Rehabilitation Trust, Mumbai (India)
SECTION27 Public Interest Law Centre (South Africa)
Swasthya Adhikar Manch (India)
Serendipity (South Africa)
Shree Sanathan Dharma Sabha of South Africa
Socio-economic Rights Institute of South Africa
South African Democratic Teachers' Union – SADTU
South African Football Association, Cape Town SACLI (South Africa) 
The Black Sash (Human Rights Organisation Advocating for Social Justice, South Africa)
Trust for Community Outreach and Education - TCOE (South Africa)
Treatment Action Campaign - TAC (South Africa) 
Third World Network Trust, India (India) 
The Legal Resource Centre (South Africa)
Vidhayak Trust (India)
Verulam Environmental Organisation (South Africa)
Workers World Media Productions – WWMP (South Africa)