Oireachtas Joint and Select Committees

Wednesday, 11 May 2022

Joint Oireachtas Committee on Jobs, Enterprise and Innovation

WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and Covid-19 Vaccines: Discussion

Professor Aisling McMahon:

I thank the Chairman and members of the committee for this invitation to address the committee today. I am a professor of law in Maynooth University specialising in intellectual property, IP, and health law.

IP rights, such as patents, provide rights holders with an exclusive right over the patented technology for a limited period, which is generally 20 years for patents. If the patented technology is an element of a vaccine, rights holders can control who can access that vaccine and at what price, and who can use that element to produce similar vaccines. Accordingly, how IP rights are used is a key factor affecting access to Covid-19 vaccines, medicines and diagnostics.

The TRIPS agreement is an international WTO agreement which imposes minimum IP obligations that must be offered in all WTO states. Due to concerns about the effects of IP on access to Covid-19 health technologies and, in particular, concerns that low- and middle-income countries were highly likely to fall significantly behind high-income countries in securing access to such technologies, in October 2020 India and South Africa proposed the TRIPS waiver. This proposal was made and discussed against the backdrop of a lack of sufficient industry support for voluntary global initiatives to encourage the sharing of IP data and know-how to radically upscale Covid-19 vaccine production for global needs.

The waiver proposes to temporarily suspend certain IP obligations under TRIPS for Covid-19 health technologies. If it is adopted, it will suspend WTO states' obligations at the international TRIPS level. However, states like Ireland could likely maintain IP protections at a national level if they wished. The main likely effect of the waiver would be to allow low- and middle-income countries to avail of it, thereby enabling entities within such countries to produce similar Covid-19 vaccines, medicines or diagnostics without facing IP litigation. While this waiver is not a panacea, it would, nonetheless, clear IP hurdles and act as a key step in increasing global vaccine production. More specifically, it would be a key step to enable low- and middle-income countries to develop sustainable long-term solutions to vaccine supply issues where the status quomodel under TRIPS has simply failed such countries. In doing so, it would help to build resilience for future pandemic preparedness. However, no agreement has been reached on the waiver to date, and the EU is a key blocker of the original TRIPS waiver proposal. Most recently, it has been reported that the EU is supporting a so-called quad - comprising the EU, India, South Africa and the US - outcome text proposal. This proposal arose following informal discussions among the US, India, South Africa and the EU. However, it is not clear at this point if India, South Africa or the US support the text.

In my view, this quad proposal, in its current form, does not offer a useful pathway to upscale Covid-19 vaccine production for four main reasons. First, it applies primarily to patents, not other IP rights such as trade secrets, which are also vital for vaccine production. It falls far short of the broad package of measures envisaged by the original TRIPS waiver. Second, unlike the original TRIPS waiver, this proposal does not waive IP rights, as such. Instead, it primarily makes modifications to existing TRIPS compulsory licensing mechanisms. Compulsory licensing can be useful in some contexts but it, alone, is not an effective tool to address vaccine access issues during a global health crisis. Third, the quad proposal introduces various additional requirements for compulsory licensing other than what TRIPS requires. For example, it requires a list of all patents relevant to the vaccine before a compulsory licence is issued. This could prove exceptionally difficult in practice. Fourth, this proposal only applies to eligible members and this is narrowly defined, thereby limiting who can use it. Put simply, the quad proposal in its current form is not a workable or effective solution for Covid-19 vaccine access issues. For these reasons, states such as Ireland should advocate at an EU level and internationally in support of the measures set out in the original TRIPS waiver proposal and work to actively achieve such measures in a waiver text under the current WTO negotiations. I thank the members for their attention.