The laws governing intellectual property differ from country to country. The World Trade Organisation (WTO) introduced the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1995 in order to have a basic global framework to protect and enforce these rights. This way, intellectual property could be traded on an equal footing and more easily across borders. Each country must honour this framework when dealing with the intellectual property rights of nationals from other WTO member countries.
Importantly, the agreement includes when these rights can be overridden in the name of enhancing economic and social welfare. This allows exporting countries to grant compulsory licences to generic suppliers in order to manufacture and export medicines to states that can’t make their own. This can be done without getting the patent holder’s consent. In a nutshell, governments can allow competitors to make a product without the consent of the company that holds the patent. This means there is certain flexibility within the agreement.
South Africa first argued in August 2020 that Covid-19 medicines should fall under this agreement to make it easier for countries to make or import Covid-19 medicines. South Africa’s ambassador to the organisation, Xolelwa Mlumbi-Peter, referenced how the agreement eased access to Aids drugs for developing nations and argued this has set a precedent for Covid-19.
She said this is a matter of putting the welfare of the poor and vulnerable above the “vaccine nationalism” already evident months before a safe and effective Covid-19 vaccine has been approved.
This call has been supported by India, which co-authored an open letter to the organisation arguing why this should be done. They argue parts of the agreement should be waived in order for there to be even more flexibility, especially for countries that do not have the manufacturing capacity to make their own medicines. The waiver should be in place indefinitely until a Covid-19 vaccine is widely available and used.
On 15 and 16 October, this proposal was before the WTO for consideration. The states failed to agree on what to do and the decision has been deferred to future meetings. Nonetheless, it has gathered the support of more than 300 civil society organisations as well as UNAIDS, UNITAID, Amnesty International and the World Health Organisation.
In South Africa, a group of at least 40 academics, researchers and teachers have written a letter to President Cyril Ramaphosa voicing their support for this proposal. They urge him to pursue this proposal and to apply its principles in Africa and South Africa.
In addition, a collection of 40 South African civil societies working together under the banner of the Fix the Patent Laws Coalition has also voiced its support for the proposal through a joint statement. They also argue that this waiver must also hasten reform in South Africa’s own patent laws.
Read the letter below:
Letter To President Ramaphosa on the proposed Covid-19 waiver,
by South Africa and India at the World Trade Organisation,
from South Africa-affiliated academics, researchers and teachers.
12 October 2020
Dear Honourable President Ramaphosa,
South Africa, along with India, has adopted a ground-breaking position at the World Trade Organisation (WTO) with the tabling of the proposal for a “Waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of Covid-19”. The proposal will be on the agenda of the WTO TRIPS Council on 15-16 October 2020.
As a group of academics, researchers and teachers affiliated to various South African institutions, we declare our strong support for this proposal.
Presently, intellectual property barriers (including patents, copyright, designs, trade secrets) prevent the level of knowledge-sharing and collaboration necessary to speed up product development, scale up manufacturing, and expand the supply of effective medical technologies to ensure equitable access to diagnostics, protective equipment, vaccines and medicines in order to mount the necessary global response to this pandemic.
We are calling on you, Mr President, to act – globally, regionally and domestically.
This proposal, if successful, will directly address the crisis that we are experiencing and which will continue, if the proprietary rights of the holders of intellectual property hold sway, at the expense of public health. This proposal has to succeed! It cannot be allowed to fail!
We therefore appeal to you to galvanise the support of the African Union and its member states to stand united and support the proposal and to take further steps at the national level to override or bypass Covid-19-related intellectual property rights.
Because the waiver, on its own, is not self-actualising at the national level, we further request that the government and Parliament of South Africa expedite the process of implementing the long-awaited amendments to the Patents Act and other legislation, to replace the outdated regulatory regime with one that is consonant with our Constitutional order.
Most immediately, we call on government to urgently introduce emergency legislation to effect the waiver on the enforcement of all forms of intellectual property rights for the entire duration of the Covid-19 pandemic. Such a waiver is also possible under the security exception provided for under Article 73 of the TRIPS Agreement to take “any action which it considers necessary for the protection of its essential security interest… taken in the time of… emergency in international relations”. The Covid-19 pandemic is one such emergency necessitating a security exception.
Mr President, this proposal presents South Africa, and Africa, with a unique opportunity to demonstrate global leadership. Future generations will look back on this time and reflect on your decisiveness in taking the necessary action to place the lives of all people before the profits of narrow business interests, and avert further devastation by this pandemic. Such action will also signal that the African Union is taking a leading role in finding solutions to the pandemic, thereby rewriting the narrative of North-South relations.
We are confident that you will rise to the challenge!
Professor Yousuf A Vawda, University of KwaZulu-Natal.
Professor Brook K Baker, Northeastern University School of Law and University of KwaZulu-Natal.
Professor Caroline Ncube, University of Cape Town.
Mr Andy Gray, University of KwaZulu-Natal.
Professor Leslie London, University of Cape Town.
Associate Professor Tobias Schonwetter, University of Cape Town.
Professor Quarraisha Abdool Karim, CAPRISA SA and University of KwaZulu-Natal.
Dr Mamphela Ramphele, Member of the Academy of Sciences of South Africa.
Professor David McQuoid-Mason, University of KwaZulu-Natal.
Professor Malebakeng Forere, University of the Witwatersrand.
Professor Helen Schneider, University of the Western Cape.
Dr Varsha Bangalee, University of KwaZulu-Natal.
Professor Kaymarlin Govender, University of KwaZulu-Natal.
Ms Lindiwe Maqutu, Lecturer, University of KwaZulu-Natal.
Mr Umesh Bawa, University of the Western Cape.
Dr Marietjie Botes, University of KwaZulu-Natal.
Associate Professor Wendy Burgers, University of Cape Town.
Dr Flavia Senkubuge, University of Pretoria.
Dr Arne von Delft, University of Cape Town.
Professor Hoosen Coovadia, Maternal, Adolescent and Child Health Systems (MATCH)
Ms Sandhiya Singh, University of KwaZulu-Natal.
Dr Mohammed Ishaaq Datay, University of Cape Town.
Professor Julian Kinderlerer, Universities of Cape Town, KwaZulu-Natal, and TU Delft.
Professor Mpiko Ntsekhe, University of Cape Town.
Mr Jay Kruuse, Rhodes University.
Ms Priya P Singh, University of KwaZulu-Natal.
Associate Professor Shajila A Singh, University of Cape Town.
Mr Bonginkosi Shozi, University of KwaZulu-Natal.
Professor Purshottama Sivanarain Reddy, University of KwaZulu-Natal.
Ms Anneleen De Keukelaere, People’s Health Movement South Africa.
Professor Diane Cooper, University of the Western Cape.
Professor Klaus D Beiter, North-West University, and Max Planck Institute, Germany.
Professor Sharon Prince, University of Cape Town.
Ms Nikki Schaay, University of the Western Cape.
Professor Lynette Denny, Groote Schuur Hospital Cape Town and SA Medical Research Council.
Distinguished Professor Catriona Macleod, Rhodes University.
Associate Professor Liz Gwyther, University of Cape Town.
Professor Muazzam Jacobs, University of Cape Town and National Health Laboratory Services.
Professor Alison V September, University of Cape Town.
Associate Professor Delva Shamley, University of Cape Town.
Associate Professor Shahieda Adams, University of Cape Town.
Professor Jennifer Moodley, University of Cape Town.
Professor Collet Dandara, University of Cape Town.
(Additional signatories to be added). MC
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