UPDATE: The World Health Organization has published the COVID-19 response resolution as a conference paper (A73/CONF./1) marked with the date of 18 May 2020. The sponsors of the draft resolution included: Albania, Australia, Bahrain, Bangladesh, Belarus, Bhutan, Bolivia (Plurinational State of), Brazil, Canada, Chile, China, Colombia, Costa Rica, Djibouti, Dominican Republic, Ecuador, El Salvador, Fiji, Guatemala, Guyana, Iceland, India, Indonesia, Iraq, Japan, Jordan, Kazakhstan, Maldives, Marshall Islands, Mexico, Micronesia (Federated States of), Monaco, Montenegro, Morocco, New Zealand, North Macedonia, Norway, Panama, Paraguay, Peru, Qatar, Republic of Korea, Republic of Moldova, Russian Federation, San Marino, Saudi Arabia, Singapore, Sri Lanka, Thailand, the African Group and its Member States, the European Union and its Member States, Tunisia, Turkey, Ukraine and United Kingdom of Great Britain and Northern Ireland
The resolution can be found here:
After two and a half weeks of tortuous negotiations, member states of the World Health Organization (WHO) are poised to adopt a COVID-19 resolution; the original zero draft of the Covid-19 response resolution was submitted nearly four weeks ago by the European Union on 15 April 2020. For the original text of the resolution, please see: https://www.keionline.org/wp-content/uploads/EU-Proposal-for-a-WHA73-Resolution-on-the-COVID-19-Response.doc.
The current and perhaps final text, dated 12 May 2020 with the timestamp of 20h30 was circulated to all Member States; this resolution is sponsored by Albania, Australia, the European Union and its Member States, Monaco, Montenegro, New Zealand, North Macedonia, San Marino, the United Kingdom of Great Britain and Northern Ireland, and Zambia. Informed sources have notified Knowledge Ecology International (KEI) that the text is currently in silence procedure which will expire at 12 noon (Geneva time) on 14 May 2020. If no country breaks the silence procedure the resolution will be transmitted to the 73rd session of the World Health Assembly (WHA) to be adopted next week (18-19 May 2020).
During the marathon negotiations, even language on voluntary licensing of intellectual property emerged as a flashpoint. The paragraphs OP7.2 and OP7.2bis in the intersessional text illustrate tensions in the WHO deliberations on COVID-19.
Chair’s proposal OP7.2: Work collaboratively at all levels to develop, test, and scale-up-production of safe, effective, quality, affordable diagnostics, therapeutics, medicines and vaccines for the COVID-19 response, including, [but not limited to (del UK, Switz) the (optimal (del – US)] / (voluntary (US)] use by [rights holders [US)] of existing mechanisms [for licensing intellectual
property (US)]/[ for voluntary pooling of patents and for licensing (del US)], to facilitate [fair distribution of] and timely, equitable and affordable access to them, [consistent with the provisions [and flexibilities (del US)] of relevant international treaties,];
Preference to have in the middle -“including voluntary use of existing mechanisms” (EU)
OP7.2 bis Voluntarily (consider sharing (Monaco, EU)]/[share] data and know-how for [relating to (CAN,BOT)] diagnostics medicines vaccines and [other] health technologies [related to (del EU)]/ [necessary in the response to (EU)] COVID-19 through [universal, nonexclusive and open-licensing (choose one term, CAN, BOT]] (Zimbabwe, Indonesia, India BAN, BOT)
What is now chair’s text is this:
OP8.2: Work collaboratively at all levels to develop, test, and scale-up production of safe, effective, quality, affordable diagnostics, therapeutics, medicines and vaccines for the COVID-19 response, including, existing mechanisms for voluntary pooling and licensing of patents to facilitate timely, equitable and affordable access to them, consistent with the provisions of relevant international treaties including the provisions of the TRIPS agreement and the flexibilities as confirmed by the Doha Declaration on the TRIPS Agreement and Public Health;
On its face, it’s not terrible. But it’s weak. It’s weak in comparison to proposals by Canada and others to call for “universal and non-exclusive and open-licensing” and references to sharing data and know-how, and why narrow the mandate to “existing mechanisms” for voluntary pooling and licensing of patents before even sorting out what is needed, for example, for vaccines and products other than drugs, or if non-voluntary measures are needed.
More generally, it is a far cry from what needed to be said. The public, even the Financial Times, want funders of R&D and holders and intellectual property rights (including patents, regulatory exclusivity, know-how etc) to eliminate legal monopolies on products and share the practical know-how necessary to expand global production of needed drugs, vaccines and other technologies. No monopolies in a pandemic should be the message here, and when it could make a difference on this issue, the WHA dropped the ball giving us the typical watered down, lawyered ambiguity that will means little to most readers, if it’s read at all.
In addition to operative paragraph 8.2, the Chair’s contains the another reference to the WTO rules on patents, in the para OP4 directed at member states and para OP9.8 directed at the WHO Director-General.
OP4 Calls for the universal, timely and equitable access to and fair distribution of all quality, safe, efficacious and affordable essential health technologies and products including their components and precursors required in the response to the COVID-19 pandemic as a global priority, and the urgent removal of unjustified obstacles thereto; consistent with the provisions of relevant international treaties including the provisions of the TRIPS agreement and the flexibilities as confirmed by the Doha Declaration on the TRIPS Agreement and Public Health;
OP9.8: Rapidly, and noting OP2 of RES/74/274 and in consultation with Member States, and with inputs from relevant international organizations civil society, and the private sector, as appropriate, identify and provide options that respect the provisions of relevant international treaties, including the provisions of the TRIPS agreement and the flexibilities as confirmed by the Doha Declaration on the TRIPS Agreement and Public Health to be used in scaling up development, manufacturing and distribution capacities needed for transparent equitable and timely access to quality, safe, affordable and efficacious diagnostics, therapeutics, medicines, and vaccines for the COVID-19 response taking into account existing mechanisms, tools, and initiatives, such as the Access to COVID-19 Tools (ACT) accelerator, and relevant pledging appeals, such as “The Coronavirus Global Response” pledging campaign, for the consideration of the Governing Bodies;
What’s amazing here is that one of the central actors in the ACT accelerator, CEPI, has already indicated they are opposed to open licensing of intellectual property and know-how for vaccines. What a massively important issue to overlook. Particularly since the real money for vaccine development is coming from governments and charities, and handed over to non-transparent entities that claim even government funded academic research centers are unwilling to share intellectual property rights, and industry can be free to claim monopolies on R&D outcomes that governments are financing.