Day June 5, 2021

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.

A closer look at the final Commission guidance on the application of Article 17

[Communia Assocaition] Today, on the verge of the implementation deadline for the CDSM directive, the European Commission has published its long awaited guidance on the application of Article 17 of the Directive, in the form of a Communication from the Commission to the European Parliament and the Council. The structure of the final guidance largely follows the outline of the Commission’s targeted consultation on the guidance from July 2020, but there are significant changes to the substance of the final document. The final version of the guidance makes it clear that the European Commission has completely undermined the position it held before the CJEU, that Article 17 is compatible with fundamental rights as long as only manifestly infringing content can be blocked.