Time for Canadian Leadership on the TRIPS Waiver

The World Trade Organization (WTO) is continuing to hold discussions on a proposal for a waiver of intellectual property rights clauses in its Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement that bear on Covid-19 patents, such as medications and vaccinations. India and South Africa first proposed the waiver on October 2, 2020. It was a time within that first year of the pandemic amid great anticipation of Covid vaccinations on the horizon. The waiver represented a hope for a more equitable roll out of preventative treatments for fighting this scourge, without the usual access barriers posed by intellectual property protections.

In the following months, 100 low-income countries came together to endorse the waiver. Then in a dramatic reversal, marked by a no-less-dramatic change in administrations, the U.S. came out in favor of the waiver on May 5th, 2021. At that point, Canada asserted its position, which consisted largely of sitting on the fence: “Canada is ready to discuss proposals on a waiver for intellectual property (IP) protection, in particular for COVID-19 vaccines, under the WTO Agreement on TRIPS,” is how Mary Ng, Canada’s Minister of Small Business, Export Promotion and International Trade put it on May 7th, 2021.

Now two years into this pandemic, Canada is still perched on that waiver fence, along with a number of other nations. As the WTO’s TRIPS Agreement only moves through a consensus among its 158 countries, Canada’s seeming neutrality leaves the floor to property-rights advocacy. Canada is not prepared to call the pharma lobbyists on their willingness to benefit from Trudeau’s billion dollar investment in Covid research (not to mention the U.S.’ $18 billion Operation Warp Speed), while they dare to paint the waiver as a threat to their interest in saving lives.

What makes this particularly disturbing is how we have otherwise seen the world pull together in a global response to the pandemic. From the early months of 2020, when WHO began expressing concern over Covid-19, a new digital sense of open science was mobilized to confront this global health threat. Most immediately, ongoing genomic surveillance of SARS-CoV-2 were, and continue to be, openly shared among researchers. Scholarly publishers effectively suspended copyright for Covid-related research by making it open access to ensure that scientists, journalists, policymakers, and the public faced no impediments in consulting what was being discovered paper by paper. Tens of thousands of open access “preprints,” representing research that has yet to be published, have been posted in bioRxiv.org and other preprint servers to speed up the circulation of their findings (if in a cautionary way prior to peer review).

Yet during all of that there has been virtually no movement on the TRIPS waiver. Despite both the urgent and temporary nature of the waiver – “until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity” – it has mainly served to prove that the TRIPS Agreement is not so much an agreement among nations as a fortress from which the IP rights of the few are defended against the interests of the many.

Because it won’t go away, the waiver faces various dilution efforts, not without a certain irony. For example, “geographic exclusions” have been proposed for the waiver. These exclusions would remove India, which proposed the waiver, and China from the waiver. The measure appears directed against the manufacturing capacities of these two countries. India, in particular, has established a proud record for serving as the principal source of affordable generic drugs in the Global South. And yet, while the Indian government continues to support the waiver, within the country there is much discord, according to a recent story in The Hindu. The Organization of Pharmaceutical Producers of India (OPPI), largely representing subsidiaries of Western pharmaceutical companies, opposes the waiver outright. On the other hand, the Indian Drug Manufacturers Association (IDMA) argues for a granting of “voluntary licenses” and a transfer of technologies to qualified companies against the payment of “reasonable royalties” (rather than supporting the straight waiver of IP rights). IDMA’s position represents the sort of compromise that could be introduced into the discussions to break this logjam.

The message for Canada is straightforward. To suggest that one “is ready to discuss” the TRIPS waiver, without actually proposing a way forward, effectively places property rights ahead of the welfare of humankind. Canada’s failure of leadership on this point undermines its considerable research investment in this area, which should be seen as sufficient support for health industry property rights. But then Canada’ relative indifference also breaks rank with the country’s support for open science, even as this approach has also helped advance the vaccines at the heart of this dispute over property rights. This country can do better.