Lessons From the Pandemic for LDCs: Implementing Intellectual Property Flexibilities

Sangeeta Shashikant
Third World Network Briefing Paper
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Excerpt:

The global crisis of COVID-19 has underscored the vital importance of utilizing, to the fullest extent, policy space in the area of intellectual property. Since the onset of the pandemic, many countries around the world have had to confront various challenges of access including to tools protected by intellectual property (IP). These include copyrighted materials as learning shifted to online platforms, and affordable health products and technologies to prevent and treat the infection. The pandemic has also accentuated the significance of local production as limited supplies of critical commodities are rapidly snapped up by developed countries.

Since March 2020, the least developed countries (LDCs) have perhaps struggled the most with limited financial resources, facilities and technological capacity to contain the pandemic and deal with its socioeconomic impacts. …

This points to the staggering inequity witnessed in this pandemic and which continues till today and threatens to deepen. For instance, although testing is crucial to identify the nature and scale of infection, as of February 2022, testing in LDCs constituted a mere 1% of tests reported globally. It is no different for vaccines, as by February 2022 just 28% of the LDC population had received at least one dose of a COVID-19 vaccine. Only 13% in the Africa region, which has the most LDCs, have been fully vaccinated. This vast disparity has shone a spotlight on flexibilities within the IP system to address national needs.

IP protection standards were globalized with the entry into force of the World Trade Organization (WTO)’s Agreement on Trade-Related Aspects of Intellectual Property Rights. This instrument, commonly known as the TRIPS Agreement, set minimum requirements to be followed by the WTO Member states. These standards generally confer exclusive rights to the right holder across the different categories of IP covered by the Agreement. But the Agreement also contains flexibilities allowing Members to take measures to prevent abuse by the IP holders as well as to protect public health, nutrition and to promote the public interest in sectors of vital importance.

The LDC WTO Members enjoy a greater set of flexibilities. In view of their special needs and requirements, their economic, financial and administrative constraints and their need for flexibility to create a viable technological base, the LDCs are generally exempt from implementing the TRIPS Agreement pursuant to Article 66.1. In addition to this general exemption which presently continues till 1 July 2034, LDCs also have a specific exemption from TRIPS requirements on patents and protection of undisclosed information applicable to pharmaceutical products until 1 January 2033. The LDCs also have a right to seek an extension of this exemption known as “transition period”.