The COVID-19 TRIPS Waiver Process in Critical Review: An Appraisal of the WTO DG Text (IP/C/W/688) and Recommendations for Minimum Modifications

Abstract

The original TRIPS waiver proposal made by India and South Africa in October 2020 was based on the need for affordable access to medical products for the prevention, containment of treatment of COVID-19 during the pandemic. That proposal sought to bring into force a waiver of WTO States’ TRIPS obligations with regard to patents, copyrights, industrial designs and undisclosed information as they relate to COVID-19 health technologies. In May 2021, we set out the legal and political case for this principles-based TRIPS waiver. Subsequent negotiations over the waiver have been difficult and protracted. Only in May 2022 did an apparent ‘compromise’ text emerge from the WTO Director General (DG), but without the explicit support of the waiver’s main proponents, India and South Africa, leading to concern over the scope and effectiveness of the DG text. In this paper we provide a short commentary that critiques the WTO DG text’s deficiencies and spells out the minimum modifications necessary for a meaningful workable text for use in the COVID-19 emergency context.