Maverick Citizen

TRIPS AGREEMENT

Ramaphosa urged not to endorse ‘sham of a waiver’ for Covid-19 patents

(Photo: EPA-EFE / Wu Hong)

A group of South African academics and the international NGO Doctors Without Borders have urged member countries in the World Trade Organisation to resume negotiations after a leaked document detailing a compromise in waiving patents for Covid-19 vaccines surfaced.

Raising their concern that South Africans might face severe struggles to access Covid-19 treatments, a group of South African academics has written to President Cyril Ramaphosa over “the disastrous leaked draft text of a proposed ‘compromise’ over the transfer of technology for Covid-19 vaccines… 

“Regrettably, the draft text accomplishes little to actually ensure expanded supply and technology transfer of Covid-19 vaccines, and it totally excludes vitally needed medicines and diagnostic tests for six months, and in all likelihood much longer. 

“We urge you not to agree to the draft text in its current form and to continue to show the resolve that might deliver a meaningful waiver that will give freedom to operate for companies in South Africa and elsewhere to manufacture, sell, and equitably distribute Covid-19 countermeasures to the populations that have suffered devastating shortages and inequality during the entire pandemic,” the letter continues. 

The letter also warns that many countries, and South Africa’s private sector, in the Global South, are excluded from voluntary licences on promising outpatient antiviral treatments from Merck (molnupiravir) and Pfizer (Paxlovid).

“Countries under the companies’ exclusive monopoly control will be left at the end of the line once again and charged needlessly high prices,” the academics said.  

In the letter, the authors express their concern over “current negotiations on the South Africa/India proposed temporary waiver of intellectual property protections on Covid-19 health technologies at the World Trade Organization (WTO)”. 

The letter comes after the director-general of the WTO, Ngozi Okonjo-Iweala, last week welcomed progress made in negotiations around the waiver. 

“This is a major step forward and this compromise is the result of many long and difficult hours of negotiations. But we are not there yet. We have more work to do to ensure that we have the support of the entire WTO membership,” Okonjo-Iweala said in a statement released on 16 March. 

While the agreement between the European Union, India, South Africa and the US is an essential element to any final deal, she cautioned that not all the details of the compromise had been ironed out and that internal domestic consultations with the four members were ongoing. Moreover, she stressed that work must commence immediately to broaden the discussions to include all 164 members of the WTO. 

“In the WTO we decide by consensus, and this has not yet been achieved. My team and I have been working hard for the past three months and we are ready to roll up our sleeves again to work together with the TRIPS Council Chair, Ambassador Lansana Gberie (Sierra Leone) to bring about a full agreement as quickly as possible. We are grateful to the four members for the difficult work they have undertaken so far,” said Okonjo-Iweala. 

The Trade-Related Aspects of Intellectual Property Rights (Trips) Agreement came into effect in 1995 and sets out minimum standards of protection for intellectual property globally, including trade secrets and patents, the access of which will be essential for the Global South to manufacture Covid-related diagnostics, antiviral medication and vaccines. 

To waive these standards, 75% of the WTO members must agree. 

On 20 October 2020 South Africa proposed a waiver to the Trips Agreement for Covid-related diagnostics, personal protective equipment, medication and vaccines. The proposal was blocked by a number of countries for months. These countries included the US, the UK, the European Union, Australia, Switzerland, Canada, Brazil and Japan.  

In May 2021 the US announced its partial support for a waiver and a few countries then followed suit. 

The academics’ letter appreciates Ramaphosa’s efforts as well as those of the director-general of the World Health Organization, Dr Tedros Ghebreyesus, and UNAids Executive Director Winnie Byanyima.  

“We applaud your past, steadfast support for a meaningful WTO waiver and your domestic efforts to increase South Africa’s biomedical manufacturing capacity and to share the fruits of scientific progress with the rest of the world, through your support for the WHO mRNA Vaccine Technology Transfer Hub,” the letter reads, but warns in the next paragraph that the proposed compromise was fundamentally defective and failed to deliver meaningful progress even on vaccines, which is its exclusive focus. 

In its current form, the ‘compromise text’ is frankly misleading and a failure. Many of us strongly believe that it is not worth signing and that it would be an embarrassment – an admission of capitulation to unreasonable demands from the United States and European Union – to do so.

The letter further complains that the draft text fails to address the problem of technology transfer, and the access to confidential information, data, trade secrets, and manufacturing know-how that is essential to quickly enable the development of vaccine manufacturing capacity.  

“Overriding patents alone will not get South Africa or any other country expanded access to Covid-19 health products. Instead, as is already happening with the Technology Transfer Hub, vaccine developers are having to reinvent the wheel of product development and quality-assured manufacturing at a commercial scale.  

“Major vaccine producers like Pfizer and Moderna have refused to share their mRNA vaccine technologies with the Hub or other independent producers, adding years of delay to the production of needed vaccines,” the letter continues. 

According to the letter, the draft of the compromise agreement also excludes medicines and diagnostic tests which are in scarce supply in the Global South. 

“The consequences of patent protection on diagnostics were acutely experienced in South Africa with delayed testing due to the capture of diagnostic reagents by developed economies – resulting in the inability to access or manufacture our own diagnostics. 

“Late or missed diagnoses mean amplified transmission and worse prognosis, adding to our disease and mortality burdens due to Covid-19. Countries that have suffered the ravages of vaccine apartheid are now asked to wait at least six months and probably much longer for the WTO to even consider whether intellectual property barriers on these medical essentials will be waived.”  

The letter describes more fundamental technical flaws in the proposed compromise agreement. 

“It is not the waiver that South Africa championed for the rest of the world and its marginalised people. It is not a waiver that delivers anything meaningful except perhaps the temporary waiver of [an article] which prevents unlimited supplies to other countries when a compulsory licence on a patent is issued.  

“In its current form, the ‘compromise text’ is frankly misleading and a failure. Many of us strongly believe that it is not worth signing and that it would be an embarrassment – an admission of capitulation to unreasonable demands from the United States and European Union – to do so. 

“Please leave the door open to further urgent negotiations to engineer a waiver that you and other South Africans can be proud of, by refusing to endorse this sham of a waiver.” 

Médecins Sans Frontières/Doctors Without Borders (MSF) said on 16 March that while they acknowledge the efforts towards a final resolution, the “leaked text” was far from being an intellectual property waiver. 

“MSF urges all World Trade Organization members to be aware of the limitations of the leaked text. WTO members should work together to ensure that any agreement tackles the current barriers to accessing all Covid-19 medical tools, including treatments and diagnostics, and also addresses patents and non-patent barriers in an effective way,” MSF said. 

MSF has pointed out that the leaked text only covers vaccines, but leaves some space for the inclusion of other treatments and diagnostics, is geographically limited, covers only patents and does not address other intellectual property barriers, such as trade secrets, which may cover critical information needed to facilitate manufacturing.  

“Delaying the decision on treatments is unacceptable, as many people will have no access to generic antivirals and countries are paying high prices for access to lifesaving treatments like baricitinib due to patent monopolies that block more affordable generic versions. 

“The leaked text also fails to cover all countries. It limits ‘eligible members’ to developing countries and only those who exported less than 10 percent of the world’s Covid-19 vaccine exports in 2021, effectively excluding Brazil and China from being able to use the ‘waiver’. 

“The proposed compromise would require authorisation by governments on a product-by-product basis, which was one of the shortcomings of the existing mechanism in a pandemic context and makes its use very cumbersome. There is also a new obligation to identify all patents covered by the authorisation, something not required today under WTO trade rules,” MSF added. 

Dimitri Eynikel, the EU policy adviser for MSF’s Access Campaign, said it was good that there was groundwork for a compromise but the draft document was very limited and needed urgent improvement. 

“The good news is there is still room for governments to improve and make sure that any final agreement adequately addresses the remaining barriers now missing in the leaked text. We urge all WTO members to do so,” he said. 

The signatories

The letter to Ramaphosa was signed by Fatima Hassan, founder of the Health Justice Initiative, Professor Leslie London from the University of Cape Town, Andy Gray from the University of KwaZulu-Natal, Professor Brook Baker from Northeastern University in the US and the University of KwaZulu-Natal, Professor Yousuf Vawda from the University of KwaZulu-Natal, Distinguished Professor Keymanthri Moodley from Stellenbosch University, Professor Dalindyebo Shabalala from the Dayton School of Law in Ohio, Dr Umesh Bawa from the University of the Western Cape, Honorary Research Fellow Marietjie Botes from the University of KwaZulu-Natal, Associate Professor Wendy Burgers from the University of Cape Town, Emeritus Professor Julian Kinderlerer from the University of Cape Town, Visiting Researcher Marlise Richter from the University of Witwatersrand, Postdoctoral Scholar Bonginkosi Shozi from the University of California San Diego, Dr Lauren Paremoer from the University of Cape Town, Salome Meyer from the Cancer Alliance, Professor Susan Sell from the Australian National University, Professor Rod Walker from Rhodes University, Jenny Coetzee from the Perinatal HIV Research Unit at the South African Medical Research Council and Carla Tsampiras from the University of Cape Town. 

Second letter

In another letter to Ramaphosa, Jayati Ghosh, a professor of economics, at Jawaharlal Nehru University in New Delhi, Joseph Stiglitz, a professor at Columbia University in New York and winner of the 2001 Nobel Prize in Economics, and Peter Kamalingin, the Pan-Africa director of Oxfam, said they too would support South Africa in turning down the compromise proposal. 

“We strongly support South Africa not agreeing to this proposal. We are keen to work with you as you lead the world to obtain a useful and meaningful outcome that facilitates diversification and expanded production and supply. Like civil society groups around the world, we believe a bad deal is worse than no deal. We want to work with you to support an outcome at WTO that will make a difference in battling Covid. The leaked text fails that test.

“Developing countries have experienced the worst effects of Covid-19. The crisis is far from over as infections and deaths continue all over the world. New variants are also expected to emerge, with the potential to further devastate countries socially and economically. 

“A meaningful outcome on the Trips waiver proposal holds the key to promoting equitable access to the Covid-19 medical tools that can facilitate and sustain socioeconomic recovery and protect the lives and livelihoods in South Africa, India and many other developing countries,” the authors said. DM/MC

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