Professor Aisling McMahon:

I will respond to the point about whether the TRIPS waiver is a change of rules. The TRIPS agreement was adopted in 1995. It is a WTO framework that sets out minimum standards. Prior to that, some countries had abolished patent systems for pharmaceuticals. Other countries did not have them. They had different effects. The TRIPS waiver required minimum standards. The Doha declaration was a direct acknowledgement of the need to take into account public health issues when considering IP rights. Paragraph 4 of the declaration highlights that intellectual property rights should not be used in a way that would damage public health. That is built into the TRIPS agreement. If adopted, the waiver has to be negotiated and discussed with the WTO states. It can only be adopted subject to the WTO rules. That is built into the system. It is a temporary waiver. The TRIPS framework has always provided for waivers. The Doha declaration was a waiver itself. This would be no different.

We have to be careful about what the waiver would do. Much would depend on how it is negotiated, whether a text is adopted and what happens in that context. The waiver originally proposed by India and South Africa was a comprehensive waiver, but it was a temporary suspension of IP rights. The other important point is that it would suspend such rights at the TRIPS level, so states would not have to comply with TRIPS requirements if they so wished. However, it is likely that many states like Ireland and other high-income countries with access to Covid-19 vaccines and other health technologies, thankfully, would not need recourse to that waiver. The effect of the waiver is likely that it would be used by lower-income countries. It may have impacts, but it will not necessarily have impacts in high-income countries. As Senator Garvey pointed out, precedents for this exist. Antiretroviral drugs are made on a generic basis. Medicines Patent Pool makes products on a generic basis, primarily for lower-income countries. There are different markets in high-income countries. It is important to see it in that context.