Thursday, January 6, 2022
Peter K. Yu (Texas A&M University), A Critical Appraisal of the COVID-19 TRIPS Waiver, Tex. A&M U. Sch. L. Legal Stud. (Research Paper No. 21-32, 2021):
In October 2020, India and South Africa submitted an unprecedented proposal to the Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization, calling for a temporary waiver to combat the global pandemic. This waiver aims to suspend Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement and related enforcement under Part III "in relation to prevention, containment or treatment of COVID-19." Lasting for a finite period to be determined by the General Council, the waiver would cover not only patents, but also other forms of intellectual property rights. In May 2021, the proponents, along with over 60 cosponsors, submitted a revised proposal, which set the duration to "at least 3 years" and narrowed the range of products and technologies covered.
This chapter offers a critical appraisal of the COVID-19 TRIPS waiver proposal. It begins by identifying the arguments for the waiver. It then turns to arguments against the proposal, including those made by policymakers and commentators who question the waiver's effectiveness. After documenting both sides of the debate, this chapter concludes by exploring whether we should support the text-based negotiations on this instrument – and if so, whether we should also support its adoption.