Item 15 – Waiver from certain provisions of the TRIPS Agreement for the Prevention, Containment and Treatment of COVID-19

December 10, 2020 – Intervention by Canada

Thank you Madam Chair.

Canada is pleased that Members were able to reach consensus on the status report, and indeed as to the next steps in this important discussion.

Canada is confident that Members will be able to resolve any concrete obstacles identified by Members in an evidence-based and consensual manner.

Contrary to some reports, Canada has not rejected this proposal. Indeed, at the October meeting of the TRIPS Council, Canada had indicated its interest in hearing about the specific, concrete IP challenges of Members in procuring COVID-19 treatments and other related technologies.

As Canada has expressed at the October meeting of the TRIPS Council, Canada’s longstanding view is that IP rights can serve as an important incentive to innovation, while ensuring that there is an appropriate balance between protecting IP rights and promoting access to medicines and other health care technologies. Canada remains of the view that the multilateral framework under the TRIPS Agreement establishes an important balance in this regard.

In particular, the TRIPS Agreement contains a number of important flexibilities that are affirmed under the Doha Declaration on the TRIPS Agreement and Public Health. Canada also notes that IP rights are only one part of a broad discussion informing the availability and accessibility of medicines; indeed, as the Doha Declaration emphasizes, the TRIPS Agreement is part of the wider national and international legal and regulatory framework to address public health problems.

Canada also has a systemic interest in upholding the international rules-based trading system with the WTO at its core. Canada is fully available and interested in hearing about concrete challenges faced by Members in addressing the pandemic, while noting our very strong preference for approaches to any trade issues that work within and leverage the international trading system to its full extent.

While Canada did hear from a few Members on concrete IP challenges in procuring COVID-19 treatments and other related technologies, and Canada appreciates their engagement, no regime-level weaknesses, obstacles or inefficiencies that would necessitate a waiver have yet been identified. Canada believes that the concerns raised can be addressed through the TRIPS Agreement itself and the flexibilities it contains, chiefly the mechanisms outlined in Articles 31 and 31bis.

Since October, Canada has heard mostly about concerns in relation to the domestic implementation of Article 31, or in relation to Article 31bis. Canada does not see these concerns as suggestive of issues with the TRIPS regime such that would necessitate a waiver. Canada remains the only Member to have used the special compulsory licensing system under Article 31bis, and can thus observe, on the basis of concrete experience, that the system worked as intended. Canada has heard that the Article 31bis system having been used only once suggests that the system is inadequate. Rather, Canada believes that this suggests that the overall TRIPS regime works well, as part of the broader international framework, and provides Members with sufficient latitude and flexibility, such that there has been limited or no need to issue compulsory licenses under Article 31bis. Canada’s interest in hearing about the specific, concrete IP challenges of Members, particularly now in relation to COVID-19, very much remains, as does our longstanding and steadfast commitment to balanced international IP rules and to the multilateral framework that the TRIPS Agreement provides to that end.

Canada has reviewed the patent landscape and other information provided by South Africa in IP/C/W/670, and thanks South Africa for compiling this information. While the information provided does give some indications as to the concerns of South Africa and other Members, Canada believes that more concrete information regarding the specific IP issues faced by Members in relation to the TRIPS Agreement, including in respect of the procurement of COVID-19-related goods, the establishment of local production of COVID-19-related goods, and the use of the flexibilities of the TRIPS Agreement in relation to COVID-19, would be most useful in facilitating a constructive, evidence-based discussion, and in fostering mutual understanding. In particular, Canada remains interested in seeking clarification on any IP-related barriers experienced by Members related to, or arising from, the TRIPS Agreement, including with respect to the implementation of TRIPS flexibilities.

On a related note, Madam Chair, Canada would like to take this opportunity to present, for the record, the communication from Australia, Canada, Chile and Mexico of November 27 in IP/C/W/671, and titled Questions on Intellectual-Property Challenges Experienced by Members in Relation to COVID-19.

There is a need for a comprehensive and global response to the pandemic that leverages the entire multilateral trading system in supporting the research, development, manufacturing, and distribution of safe and effective treatments for COVID-19. This includes key initiatives such as the Access to COVID-19 Tools Accelerator and the COVAX Facility, as well as ongoing work in the WTO and elsewhere towards safeguarding and protecting global supply chains. These and other consensus-based, multilateral solutions represent, we believe, the most effective collective response to these global challenges.

In this spirit, and with a view to promoting further dialogue, and fostering mutual understanding and evidence-based discussion, Canada and co-sponsors Australia, Chile and Mexico submitted, on Friday, November 27, a communication numbered IP/C/W/671 containing a set of questions on IP challenges experienced by Members in relation to COVID-19. This communication seeks to better understand the nature and scope of any concrete IP barriers experienced by Members related to or arising from the TRIPS Agreement such that would constitute impediments to the fight against COVID-19. The co-sponsors would welcome any responses to these questions, such as at the present meeting of the TRIPS Council or ideally in writing as WTO documents. The co-sponsors would also be pleased to answer any questions that Members may have on our communication.

We look forward to an evidence-based and fruitful discussion of these important issues, and also look forward to further exchanges in the TRIPS Council in this regard.

Madam Chairperson, Canada is actively committed to a robust global effort to stop COVID-19 and address its devastating health, social, and economic impacts on people across the world. Canada has shown strong leadership in this regard, including through a contribution of CAD 120 million to the Access to COVID-19 Tools Accelerator, which Canada co-launched with other world leaders in May, a contribution of CAD 220 million to the COVAX Advance Market Commitment to purchase doses for low- and middle-income countries, and an investment of CAD 180 million to address the immediate humanitarian and development impacts of this crisis, helping communities in developing countries mitigate and address the challenges brought about by COVID-19. This funding will support programming aligned with international response plans on priorities, such as essential food security, nutrition, and education initiatives. This new financial support for international efforts to address COVID-19 is in addition to the CAD 200 million in international development assistance provided by Canada to date.

Canada remains actively committed to a robust, multifaceted, and global effort to address the pandemic, one that draws upon all of the necessary resources and tools available in the international rules-based trading system, as well as new mechanisms for global cooperation on the procurement of treatments for COVID-19. As equitable, timely, and affordable access to testing, treatments, and effective vaccines will be critical for controlling and ending this pandemic, we look forward to continued engagement with all members of the international community, including here at the WTO, to finding solutions to these global challenges.

Thank you.