Category Coronavirus

International Copyright Flexibilities for Prevention, Treatment and Containment of COVID-19

[Sean Flynn, Erica Nkrumah and Luca Schirru] Abstract: Most policymaking attention with respect to intellectual property barriers to COVID-19 prevention, treatment and containment has been focused on patents. This focus is reflected in the World Trade Organisation (WTO) Ministerial Decision on the TRIPS Agreement, adopted on 17 June 2022, which provides a limited waiver of TRIPS rules on compulsory licences for production of COVID-19 vaccines. The original WTO proposal for a TRIPS waiver, however, explicitly applied to all forms of intellectual property, including copyright. This article outlines the numerous ways in which copyright can create barriers to addressing COVID-19. It also provides a description of international copyright treaty provisions that permit uses of copyright materials in response to the barriers identified, despite the exclusion of copyright from the final TRIPS waiver.

TRIPS Waiver and its (Jabby) Journey: Side by Side Comparison of the (Waiver?) Drafts from 2020 – 2022

[Lokesh Vyas] This is a short descriptive post highlighting the vitriolic waiving of TRIPS Waiver - which began with a proposal (by India & South Africa) waiving all the Intellectual Properties (IP) limitedly but ended up with a (pre-decided?) decision giving some leeway on compulsory licensing of patents (that’s it!). In sum, the journey is Intellectual Property Waiver to Compulsory Licensing Leeway.

A Pandemic Treaty for Equitable Global Access to Medical Countermeasures: Seven Recommendations for Sharing Intellectual Property, Know-How and Technology 

[Katrina Perehudoff, Ellen 't Hoen, Kaitlin Mara, Thirukumaran Balasubramaniam, Frederick Abbott, Brook Baker, Pascale Boulet, Mohga Kamal-Yanni, Manuel Martin, Viviana Munoz Tellez, Yannis Natsis, Vicente Ortún-Rubio, Sandeep Rathod, Maties Torrent, Yousuf Vawda, Luis Villarroel, James Love] ... We recommend that a pandemic treaty ensures sufficient financing for biomedical research and development (R&D), creates conditions for licensing government-funded R&D, mandates technology transfer, shares intellectual property, data and knowledge needed for the production and supply of products, and streamlines regulatory standards and procedures to market medical countermeasures. We also recommend that a pandemic treaty ensures greater transparency and inclusive governance of these systems. The aim of these components in a pandemic treaty should be to craft a better collective response to global health threats, consistent with existing international law, political commitments and sound public health practice.

The COVID-19 TRIPS Waiver and the WTO Ministerial Decision

[Peter Yu] Abstract: .. This chapter traces the TRIPS waiver debate from the submission of the original proposal by India and South Africa in October 2020 to the final adoption of the Ministerial Decision on the TRIPS Agreement in June 2022. The chapter further evaluates the strengths and weaknesses of this newly adopted decision, comparing it with the earlier TRIPS waiver proposal. It concludes by offering suggestions for future actions that WTO members on both sides of the waiver debate could take to help combat the COVID-19 pandemic.

TRIPS-Compliant Alternatives for Overcoming Intellectual Property Barriers to COVID-19 Countermeasures

[Brook Baker] In the aftermath of the recent WTO Ministerial Decision on the TRIPS Agreement (adopted June 17, 2022), there may be some confusion about the many options that countries have for overcoming intellectual property barriers to allow alternative production, distribution, and use of COVID-19 countermeasures.  Of course, visibility into the patent landscape for particular products is essential to understanding freedom to operate in terms of products, ingredient, and manufacturing processes, and that work is complicated, though aided by the Medicines Patent Pool MedsPaL  and VaxPaL databases and work done by other researchers on COVID-19 vaccine and therapeutics patents .  Overcoming patent barriers on ingredients will not be a significant barrier if existing, patent-owning/licensed suppliers have adequate supplies and will sell at an affordable price.  If compulsory licenses need to be issued that cover export/import sources of ingredients, the process for gaining freedom to operate becomes that more difficult.

WTO Ministerial Decision: ‘TRIPped’ the Waiver

[Shirin Syed] The 12th Ministerial Conference (MC12) concluded on Friday, June 17, 2022, with a “Ministerial Decision on the TRIPS Agreement”, to facilitate exportation of Covid-19 vaccines under the compulsory licence to enhance availability and accessibility for poor countries... The TRIPS Decision no longer remains an IP waiver as proposed originally by India and South Africa and 65 co-sponsors. It lacks the comprehensive measures as in the original proposal to address the concern of production and supply of Covid-19 vaccines to meet global demand, especially from lower-income countries who are deprived of their fair share of vaccines in the current pandemic.

TRIPS WAIVER: AN INSUFFICIENT MULTILATERAL RESPONSE. TRIPS-CONSISTENT NATIONAL ACTIONS ARE CALLED FOR

[South Centre] ...The process leading to the Decision confirms the need to fully use the TRIPS flexibilities to address emergency and other situations where public health and other public interests are at stake, and to review the current international IP regime (including article 31bis of the TRIPS Agreement) to accelerate the sharing of technology, including know-how.

Doha Twenty Years On – Has The Promise Been Betrayed?

[Yousuf Vawda and Bonginkosi Shozi] The Doha Declaration’s twentieth anniversary in November 2021 has taken place in the midst of the COVID-19 pandemic. The experience of the past two years has demonstrated that the very factors that necessitated the Declaration—the problems of inequitable access to medicines and other health technologies for the world’s poor—continue to plague us.

How Well Did Copyright Laws Serve Libraries During COVID-19?

[International Federation of Library Associations] The report involved a survey of 114 libraries worldwide and 28 interviews during February and March 2022. Respondents were from 29 countries. 83% of responding library professionals said they had copyright-related challenges providing materials during pandemic-related facility closures. These intersected with ongoing challenges predating the pandemic, including budget pressures, external financial crises, difficult negotiations with publishers, and demand for eBooks that outpaces publisher offerings.

Revisiting Canada’s Access to Medicines Regime in Response to COVID-19: A Review of the Legislation and its Underlying Objectives

[Muhammad Zaheer Abbas] Abstract: The current COVID-19 pandemic has highlighted the significance of the export-oriented compulsory licensing mechanism for countries lacking domestic manufacturing capacity. Article 31bis, the first amendment to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), is aimed at giving effect to the WTO General Council Decision 2003, which waived the domestic market requirement of compulsory licensing. In 2005, Canada became the first country to amend its patent laws to provide for Canada’s Access to Medicines Regime (CAMR) as enabling legislation to implement the WTO General Council Decision 2003. Canada clearly described its regime as a humanitarian initiative aimed at helping developing countries that lack sufficient drug and/or vaccine manufacturing capacity of their own and rely upon imports to address their public health problems. The legislation was compromised, however, by the conflicting desire to protect the corporate interests of patent-holding corporations.