IP/C/W/669  
 
2 October 2020  
(20-6725) Page: 1/4 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English  
 
WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION , 
CONTAINMENT AND TREATMENT OF COVID -19 
COMMUNICATION FROM INDIA AND SOUTH AFRICA  
1.  On 11 March 2020 , the World Health Organization (WHO)  declared the coronavirus disease 2019 
(COVID -19) to be a global pandemic , after having announced a related public health emergency of 
international concern (PHEIC) on 30 January 2020.  
2.   The World Trade Organization  (WTO) has cautioned that the "Pandemic represents an 
unprecedented  disruption to  the global economy and world trade,  as production and consumption 
are scaled back across the globe".1 We have witnessed a break down in global supply chains coupled 
with growing supply -demand gaps.  
3.  Given this pre sent context of global emergency, it is important for WTO Members to work 
together to ensure that intellectual property rights such as patents, industrial designs, copyright and 
protection of undisclosed information do not create barriers to the timely acc ess to affordable medical 
products including vaccines and medicines or to scaling -up of research, development, manufacturing 
and supply of medical products essential to combat COVID -19. 
4.  The COVID -19 pandemic is now widespread, affecting most WTO Members. A s at 1  October  2020, 
there were about 333,722,075 confirmed cases globally with 1,009,270 confirmed deaths.2 To date, 
there is no vaccine or medicine to effectively prevent or treat COVID -19. All WTO Members are 
struggling to contain the spread of the pan demic and provide health care services to those affected. 
Many developed, developing and least developed countries have declared a national emergency with 
the aim to curb the growing outbreak, and as advised by the WHO implemented social distancing 
measure s with significant consequences for society and the economy. Notably, developing countries 
and least developed countries are especially disproportionately impacted.  
5.  An effective response to COVID -19 pandemic requires rapid access to affordable medical pro ducts 
including diagnostic kits, medical masks, other personal protective equipment and ventilators, as 
well as vaccines and medicines for the prevention and treatment of patients in dire need.  
6.  The outbreak has led to a swift increase in global demand wit h many countries facing acute 
shortages, constraining the ability to effectively respond to the outbreak. Shortages of these 
products has put the lives of health and other essential workers at risk and led to many avoidable 
deaths. It is also threatening t o prolong the COVID -19 pandemic. The longer the current global crisis 
persist, the greater the socio -economic fallout, making it imperative and urgent to collaborate 
internationally to rapidly contain the outbreak.  
7.  As new diagnostics, therapeutics and vac cines for COVID -19 are developed, there are significant 
concerns, how these will be made available promptly, in sufficient quantities and at affordable price 
to meet global demand. Critical shortages in medical products have also put at grave risk patients  
suffering from other communicable and non -communicable diseases.  
 
1 https://www.wto.org/english/tratop_e/covid19_e/covid19_e.htm . 
2 https://covid19.who.int.  IP/C/W/669  
 
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  8.  To meet the growing supply -demand gap, several countries have initiated domestic production 
of medical products and/or are modifying existing medical products for the treatment of COVID -19 
patients. The rapid scaling up of manufacturing globally is an obvious crucial solution to address the 
timely availability and affordability of medical products to all countries in need.  
9.  There are several reports about intellectual property rights hinderin g or potentially hindering 
timely provisioning of affordable medical products to the patients.3 It is also reported that some 
WTO Member s have carried out urgent legal amendments to their national patent laws to expedite 
the process of issuing compulsory/government use licenses.  
10.  Beyond patents, other intellectual property rights may also pose a barrier, with limited options 
to overcome thos e barriers. In addition, many countries especially developing countries may face 
institutional and legal difficulties when using flexibilities available in the Agreement on Trade -Related 
Aspects of Intellectual Property Rights (TRIPS Agreement). A particul ar concern for countries with 
insufficient or no manufacturing capacity are the requirements of Article 31 bis and consequently the 
cumbersome and lengthy process for the import and export of pharmaceutical products.     
11.  Internationally, there is an urgent call for global solidarity, and the unhindered global sharing 
of technology and know -how in order that rapid responses for the handling of COVID -19 can be put 
in place on a real time basis.  
12.  In these exceptional circumstances, we request that the Co uncil for TRIPS recommends, as 
early as possible, to the General Council a waiver from the implementation, application and 
enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement in relation to prevention, 
containment or treatment of COVID -19.  
13.  The waiver should continue until widespread vaccination is in place globally, and the majority 
of the world's population has developed immunity hence we propose an initial duration of [x] years 
from the date of the adoption of the waiver.  
14.  We request  that the Council for TRIPS urgently recommends to the General Council adoption of 
the annexed decision text.  
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3See e.g.  https://www.bloomberg.com/news/articles/2020 -03-20/world -war-ii-style-production -may-
carry-legal-risks-for-patriots ; https://eu.courier -journal.com/story/news/2020/04/03/beshear -calls-3-m-
release -patent -n-95-respirator -amid-pandemic/5112729002/  IP/C/W/669  
 
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  ANNEX  
DRAFT DECISION TEXT  
WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, 
CONTAINMENT AND TREATMENT OF COVID -19  
The General Council  
Having regard  to paragraphs 1, 3 and 4 of Article IX of the Marrakesh Agreement Establishing 
the World Trade Organization (“the WTO Agreement”);  
Conducting  the functions of the Ministerial Conference in the interval between meetings 
pursuant to paragraph 2 of Article IV of the WTO Agreement;  
Noting  that the c oronavirus disease 2019 (COVID -19) is a new infectious disease caused by 
severe acute respiratory syn drome coronavirus 2 (SARS -COV-2);  
Recalling that on 11 March 2020, the World Health Organization (WHO) declared the 2019 –20 
coronavirus outbreak to be a pandemic , and it continues to be a very high risk across the globe in 
all WTO Members ;  
Noting with co ncern the threat to human health, safety and well -being caused by the COVID -19 
pandemic, which has spread all around the globe, as well as the unprecedented and multifaceted 
effects of the pandemic, including the severe disruption to societies, economies, global trade and 
travel and the devastating impact on the livelihoods of people;  
Recognising  the need for unimpeded and timely access to affordable medical products including 
diagnostic kits, vaccines, medicines, personal protective equipment and ventilat ors for a rapid and 
effective response to the COVID -19 pandemic;  
Recognizing  also that the COVID -19 global pandemic requires a global response based on unity, 
solidarity and multilateral cooperation;  
Noting  that, in the light of the foregoing, exceptional circumstances exist justifying waivers from 
the obligations of the Agreement on Trade -Related Aspects of Intellectual Property Rights 
(TRIPS  Agreement);  
Decides  as follows:  
1. The obligations of Members to implement or apply Sections 1, 4, 5 and 7 of Part II of the 
TRIPS Agreement or to enforce these Sections under Part III of the TRIPS Agreement, shall be 
waived in relation to prevention, containment or treatment of COVID -19, for [X] years from the 
decision of the General Council.  
2. The waiver in paragraph 1 shall not apply to the protection of Performers, Producers of 
Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the 
TRIPS  Agreement.  
 
3. This deci sion is without prejudice to the right of least developed country Members under 
paragraph 1 of Article 66 of the TRIPS Agreement.  
 
4. This waiver shall be reviewed by the General Council not later than one year after it is granted, 
and thereafter annually un til the waiver terminates, in accordance with the provisions of paragraph 
4 of Article IX of the WTO Agreement.   
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  5. Members shall not challenge any measures taken in conformity with the provision of the 
waivers contained in this Decision under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994, 
or through the WTO’s Dispute Settlement Mechanism.   
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