Developing Countries Call for a Review of the TRIPS Agreement at the WTO

Newsletter Edition #213 [The Files Brief]

Hi,

The dust has barely settled from the quiet burial of the TRIPS Waiver discussions at the WTO. Some developing countries have now called for a review of the TRIPS Agreement in the context of challenges including from the climate crisis, health emergencies and food insecurity.

Colombia, and a few other countries have called for intellectual property matters to be brought front and center of the WTO.

This is an important development, also seen from the lens of the ongoing discussions at WHO, where IP matters have spun an impasse in the negotiations towards a new pandemic agreement.

We bring you this quick and brief update on the recent discussions at the General Council Meeting at the WTO last month. We also present voices of scholars, who have critically examined the limitations and opportunities within the current framework of the TRIPS Agreement.

Thank you for reading.

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Best,

Priti

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Illustration Credit: Amy Clarke, Chembe Collaborative

I. TRADE & HEALTH UPDATE

Developing Countries Call for a Review of the TRIPS Agreement at the WTO

Dismayed by the lack of effective response from the WTO during, and in the aftermath of the COVID-19 pandemic, some developing countries are calling for a systematic review of the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

This was discussed at a meeting of the General Council at the WTO during March 21-22, following the 13^th Ministerial Conference in Abu Dhabi earlier in the year. The TRIPS extension decision for COVID-19 tests & treatments got junked at the WTO Ministerial.

In the past, other stakeholders including civil society organizations, and academics have called for a review of this agreement that is 30 years old.    

At the WTO, some  developing countries have called for a mandated review of the TRIPS Agreement in light of the special challenges brought by the climate crisis, health emergencies food insecurity.

A communication from Bangladesh, Colombia, Egypt and India (WT/GC/W/925 /  IP/C/W/708) dated, March 8, 2024 on TRIPS For Development: Post MC13 Work On TRIPS-Related Issues, said:

“1. We, keeping in mind the upcoming 30th anniversary of the TRIPS Agreement, call upon the Council for TRIPS to undertake and finalize its first review under Article 71 on the implementation of the TRIPS Agreement.

2. Pursuant to paragraph 19 of the Doha Ministerial Declaration, we request the Council for TRIPS to expedite ongoing work to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore.

3. We also call upon the TRIPS Council to examine how the TRIPS Agreement could facilitate transfer and dissemination of technologies to developing countries including LDCs.

4. We further call upon the Council to examine the TRIPS Agreement, the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and the Ministerial Decision on the TRIPS Agreement of 2022, to review and build on the lessons learned during COVID-19, with the aim to address the concerns of developing countries including LDCs in the context of health emergencies including pandemic.

5. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension and shall provide a report on the progress made, including any recommendations, to the Ministers at the 14th Ministerial Conference.”

Article 71 of the TRIPS Agreement reads thus:

“Review and Amendment

1.  The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.

2.  Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.”

It is understood that some developed countries indicated at the meeting last month, that the forum for such discussions was at the TRIPS Council and not the General Council.

Image Credit: Photo by Steve Johnson, Pexels