Category Multilateral Fora

ANALYSIS OF WIPO SCCR DRAFT REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS (SCCR/40/2)

[Sean Flynn] At the 40th Session of the Standing Committee on Copyright and Related Rights, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. That Report is subject to comment by Member States. This Note provides analysis of the Report that may be useful to Delegates and stakeholders participating in the meetings of the SCCR. The Report helpfully summarizes a large amount of agreement about the main problems and solutions that need to be addressed by the international system. These problems include a lack of exceptions in a majority of countries for: Preservation for cultural heritage; Communications in online learning and research; Cross border uses for education, research, and the activities of libraries, archives and museums.

The Impracticality of Relying on Compulsory Licenses to Expand Production Capacity for COVID-19 Vaccines

[Brook Baker] The complications and limitations of compulsory-license-reliant measures to respond to the COVID-19 pandemic need to be better explained. The European Union and several other countries espousing reliance on TRIPS-compliant compulsory licenses to overcome patent barriers have opposed the India/South Africa temporary intellectual property (IP) waiver proposal on COVID-19 health technologies at the World Trade Organization. Although compulsory licenses (CLs) on patent alone may be sufficient to allow generic production of small molecule medicines, CLs are unlikely to suffice with respect to vaccines, biologic medicines, including monoclonal antibodies, and more complex diagnostic tests, medical devices, and respirators.

Disinformation, Diversion, and Delay: The Real Text of the European Union’s Communication to the WTO TRIPS Council – Urgent Trade Policy Responses to the COVID-19 Crisis

[Brook Baker] If the European Union’s Communication to the TRIPS Council – Urgent Policy Responses to the COVID-19 Crisis has no real substance, then it is fair to conclude that its true purpose is disinformation, diversion, and delay. The Communication purports to address clarifications needed to make existing TRIPS flexibilities more operational for countries that might need to issue compulsory licenses to access COVID-19 vaccines and therapeutics. However, the proposed clarifications have no substance beyond what is already well established in the text of Articles 31 and 31bis of the TRIPS Agreement and of the Doha Declaration on the TRIPS Agreement and Public Health. When a powerful group of nations, like the E.U., offers a set of “pseudo” proposals with no substance, we can look beyond the façade to see that their real intention is to misinform decision-makers, the press, and the public and to divert attention from the proposal by India, South Africa and 61 other countries to the WTO to waive intellectual property protections on COVID-19 health products and technologies for at least three years.

The COVID-19 Pandemic and Trade-Related Security Exceptions: An Analysis of the Flexibility under International Law

[Muhammad Zaheer Abbas] The COVID-19 pandemic has raised serious concerns about affordable and equitable access to the needed health technologies. The patent-based pricing model of health technologies further exacerbates these concerns. This paper critically evaluates Article 73(b) of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS Agreement) to answer the key question: whether this safeguard provision can be invoked by WTO Member States in response to COVID-19 in order to improve access to critically needed health technologies. This is an important question because access to health technologies is a matter of life and death in a pandemic situation.

The Proposed Pandemic Treaty and the Challenge of the South for a Robust Diplomacy

[Obijiofor Aginam] The motivation for a pandemic treaty is infallible because of the ‘globalization of public health’ in a rapidly evolving interdependence of nations, societies, and peoples. Notwithstanding the lofty purposes of the proposed pandemic treaty as a tool for effective cooperation by member-states of the WHO to address emerging and re-emerging disease pandemics in an inter-dependent world, the proposal nonetheless raises some structural and procedural conundrums for the Global South. The negotiation of a pandemic treaty should, as a matter of necessity, take into account the asymmetries of World Health Organization member-states and the interests of the Global South.

Letter from 141 Scholars to USTR, re: United States Facilitation of the TRIPS Waiver

Dear Ambassador Tai: As members of the academy, we welcome your new leadership as an opportunity to both restore the standing of the United States as a global leader as well as to build global confidence in the United States as a reliable ally. The leadership of the United States as well as the confidence over the policies supported by the United States is important at this time when the globe seems to be reeling in a crisis caused from a pandemic. The pandemic has highlighted that a public health crisis in one part of the world can affect not just global trade but also affects issues that the United States as well as the WTO stands for, in unimaginable ways. Thus, the pandemic makes it imperative for countries to find solutions to promote global collaborations during the current crisis.

Educators, Libraries & Researchers Praise President Biden for Endorsing Waiver of All IP for COVID in WTO TRIPS Waiver

[PIJIP] Today educators, researchers, libraries, academics and other advocates praised President Biden, USTR Ambassador Katherine Tai and the Administration for formally supporting the WTO TRIPS waiver, including for copyright. “By supporting a waiver of ‘intellectual property for COVID-19 vaccines,’ not just of patents, the statement would presumably extend, for example, to the copyright protection that can exist on computational algorithms needed to produce mRNA vaccines. It is less clear whether the Administration’s support extends to access to copyright for other needed activities, such as to repair software enabled devices or to enable text and data mining research. Clearly, however, this is a great advance for the cause of ensuring that intellectual property bends to the public interest, not the other way around.” said Sean Flynn, Director of American University’s Program on Information Justice and Intellectual Property.

Third-Way Proposals from Big Pharma and the WTO are the Same-Old Way: Commercial Control of Supply, Price, and Distribution

[Brook Baker] This Policy Brief from the People’s Vaccine Campaign, written by Prof. Brook K. Baker, is highly relevant to the discussions of the India/South Africa TRIPS waiver proposal at the WTO. The Policy Brief distinguishes between (1) industry controlled efforts to manage the global supply of COVID-19 vaccines and other health technologies that results in the inevitable consequence of inadequate supply, needlessly high prices, and grossly inequitable distribution and (2) government-led efforts to free additional qualified manufacturers from intellectual property and technology transfer barriers that stand in the way of building near-term and sustainable biopharmaceutical manufacturing capacity in underserved developing country regions around the world.

Joint Appeal by 388 Members of the European Parliament and of European National Parliaments Urging the EU and its Member States to Support a TRIPS Waiver

One year after the adoption of the first lockdown measures in Europe, it is clear that we must urgently and exponentially increase manufacturing and availability of vaccines, tests, medicines and protective materials, and that requires wider sharing of proprietary technology and knowhow, data and resources, especially with low- and middle-income countries. We stand with the Director-General of the World Health Organization, over 100 national governments, hundreds of civil society organizations, and trade unions, and join them in urging the European Commission and EU member states to discuss at the highest levels and support the temporary waiver of certain obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Click here for the full statement and endorsers.

Not the African Copyright Pirate Is Perverse, But the Situation in Which (S)he Lives-Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization “From Below” in IP Law

[Klaus Beiter] Abstract: ...This Article will demonstrate the significance of extraterritorial state obligations (ETOs) for IP law. It focuses on the issue of how the right to education under international huan rights law prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a “constitutionalization” of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research.

Making International] Intellectual Property and Trade Regimes Work to Address the Health Response to COVID-19

[Brook Baker] The world was unprepared for COVID-19 despite other recent coronavirus outbreaks and despite multiple warnings from the World Health Organization (WHO) and others. Although there was an initial sharing of research among scientists and an unleashing of significant public, charitable, and private funding to develop, test, and expand manufacturing capacity of new COVID-19-related medicines, vaccines, and diagnostics, the status quo of exclusive rights ownership and commercial control by the multinational biopharmaceutical industry continues unabated. Existing intellectual property rules that allow private entities to maintain monopoly rights over the development, clinical testing, regulatory approval, pricing, supply, and distribution of essential medical products have not been altered.