Intellectual property framework responses to health emergencies – options for Africa

Abstract

We debate whether intellectual property (IP) protection of medical products and devices required to prevent, treat and contain COVID-19 should be waived, as proposed by South Africa and India, under the World Trade Organization (WTO)’s Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS Agreement). We discuss existing public policy mechanisms under the TRIPS Agreement and how these have been implemented at national level in Africa, and find that these have proven inadequate and that they have been sub-optimally implemented. We then consider the TRIPS Waiver proposal which has been tabled due to the inadequacy of existing mechanisms and outline the EU’s counter proposal which is founded on existing mechanisms. Both proposals have served at multiple WTO council meetings and would have been the subject of the 2021 WTO Ministerial Conference, which was postponed and is now set to be held in June 2022. Meanwhile, the proposal has been the subject of negotiations between India, South Africa, the EU and the USA (‘the quad’) and, as of May 2022, has been opened for consideration by all Members. Whatever the outcome of WTO deliberations, African states must take necessary national IP regulatory reforms and cooperate at sub-regional and continental level to improve access to medical products and devices to meet their citizenry’s healthcare needs. Significance: There is need for a sustainable and comprehensive intellectual property framework that is responsive to health emergencies. Existing public policy mechanisms have not proven effective. Adaptation and innovation are required at the international norm-setting level as evidenced by the two in-progress proposals for a TRIPS Agreement waiver and for an International Treaty on Pandemics. Both are contested and may only actualise in the medium to long term. In the context of such uncertainty and delay, timely action should be taken at national level, through legislative reform coupled with necessary manufacturing capacity, which will be boosted by cooperation between African states.