WTO TRIPS Council

January 19, 2021

Statement by Canada

Madam Chair,

Canada is pleased to see the TRIPS Council resuming this important discussion.

As the world grapples with the profound social and economic challenges caused by the COVID-19 pandemic, the international community continues to work constructively to find concrete solutions to these obstacles. Madam Chair, these challenges are unprecedented, and as we continue to advance our shared understanding of the novel coronavirus and its treatments, multilateral solutions capable of concrete application remain crucial to ensuring that we are better prepared to fight both COVID-19 and future pandemics.

In order to meet these challenges, Canada is committed to a comprehensive and global response that leverages the entire multilateral trading system in supporting the research, development, manufacturing, and distribution of safe and effective treatments for COVID-19. As recently presented to the WTO General Council in December, Canada and the other 12 Ottawa Group Members have launched the Trade and Health Initiative to strengthen global supply chains and facilitate the flow of essential medicines and medical supplies, including vaccines, amid the current crisis. Canada has also joined a number of international partners in supporting the Access to COVID-19 Tools Accelerator (or ACT-Accelerator), which provides a critical platform to galvanize global cooperation towards the development, production, and distribution of safe and effective COVID-19 medical interventions. These measures have identified tangible solutions to the concrete challenges experienced by countries around the world, such as with respect to the supply and distribution of medical goods and other treatments, in order to ensure that global borders do not serve as impediments to being able to treat those in need. Moreover, any discussion on the prevention, treatment, and containment of COVID-19 necessarily needs to take into account the broad range of policy tools in place to address this crisis. Indeed, as the Doha Declaration on the TRIPS Agreement and Public Health already emphasizes, the TRIPS Agreement itself is part of the wider national and international effort to address public health problems.

With respect to IP, Canada remains fully open to hearing about the nature and scope of any concrete IP challenges experienced by Members related to or arising from the TRIPS Agreement such that would constitute impediments to the fight against COVID-19 and, particularly, such that would warrant a waiver as contemplated in IP/C/W/669. Indeed, as with the existing initiatives noted earlier in this intervention, identifying concrete challenges will be instrumental in ensuring that any solutions can enjoy broad consensus, and can effectively address any challenges.

Madam Chair, Canada reiterates that it is not rejecting the waiver request. Canada is ready to consider the full range of solutions on the basis of evidence of concrete IP issues arising from the TRIPS Agreement that represent a barrier to access to COVID-19 treatments and related goods, and is committed to considering appropriate, consensual solutions proportionate to any identified IP barrier and commensurate with the evidence thereof.

In this regard, Canada recalls its communication in IP/C/W/671, co-sponsored by Australia, Chile and Mexico, and in which we outline questions that seek to foster this discussion, and indeed identify what concrete TRIPS-related issues Members face in relation to COVID-19 so that we may accordingly reach consensus on the most appropriate solutions.

Canada would like to thank the delegations of Bolivia, Eswatini, India, Mozambique, Mongolia, Pakistan, South Africa, Venezuela, and Zimbabwe for their engagement on the questions posed in IP/C/W/671, as circulated in document IP/C/W/673. Canada continues to review the responses to the questions outlined in IP/C/W/671, and looks forward to engaging with co-sponsors of the proposed waiver on these responses in greater detail at the upcoming formal session of the TRIPS Council on February 4. Indeed, as noted in document IP/C/W/671, Canada remains of the view that these issues merit further reflection and significant consideration, in order to identify any specific and concrete IP-related challenges faced by Members in addressing COVID-19. Given the potential implication of the proposed waiver for the international rules-based trading system, the TRIPS Council provides an important forum for all Members to discuss these complex issues, and to engage in an evidence-based discussion on the specific challenges experienced by Members, with a view to identifying solutions that effectively address these concerns. To clarify, Canada’s interest in posing these questions on the proposed waiver is to ensure that form follows function. That is, we remain interested in understanding the specific challenges that the proposed waiver would address, including in view of existing flexibilities available under the TRIPS Agreement. In addition, we remain interested in clarifying how the proposed waiver would be implemented and would operate in practice, which again would serve to inform our understanding of its implications for the rules-based trading system, in an evidence-based manner. Canada would once again like to thank the co-sponsors of the proposed waiver in this regard for their detailed responses to these questions in document IP/C/W/673, and looks forward to further engagement at the next TRIPS Council session.

Madam Chair, Canada once again reiterates its full support for the existing flexibilities under the TRIPS Agreement, as affirmed under the Declaration on the TRIPS Agreement and Public Health. Canada fully supports the right of Members, outlined in the Declaration, to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for Members to interpret and implement the TRIPS Agreement in a manner supportive of Members’ right to protect public health and, in particular, to promote access to medicines for all. Canada also stresses that, in accordance with the Declaration, Members have the right to grant compulsory licences and the freedom to determine the grounds upon which they grant such licences. Canada further recalls that Article 31bis provides Members with insufficient or no manufacturing capacities with the flexibility to seek imports under a compulsory licence granted by a Member with manufacturing capacities.

With respect to the use of existing flexibilities under the TRIPS Agreement, Canada would like to briefly respond to two points raised in the communication from Bolivia, Eswatini, India, Kenya, Mozambique, Mongolia, Pakistan, South Africa, Venezuela, and Zimbabwe in document IP/C/W/672. First, as raised in section 2.30 of that document, Canada has heard concerns that the Article 31bis process is “cumbersome”. Some Members have pointed in this regard to the notification requirements under Article 31bis; Canada notes that in its experience with the special compulsory licensing system, the notification by the importing Member in question was in the form of two short paragraphs. Canada’s own notification as exporting Member consisted of fewer than two pages’ worth of information, including the compulsory licence itself. Canada would not characterize either of these two brief notifications, which are probably not unlike the information that would have to be exchanged as part of any procurement process, and which are available on the WTO website for Members to review, as indicative of a “cumbersome” process. As well, with respect to the timelines of this process, Canada would note its own experience in making use of the special compulsory licensing system in 2007, whereby the Commissioner of Patents granted authorization within just over two weeks of receiving a request. Canada has always been a strong proponent of the TRIPS amendment making permanent the 2003 decision and indeed the special compulsory licensing system, and remains available to share our experiences and lessons learned in implementing our own system with any Member who wishes to learn more.

Second, as raised in section 2.37 of document IP/C/W/672 (and also raised in section 1.2 of document IP/C/W/674), Canada would be pleased to provide at this time a brief clarification on its recent Patent Act amendments, as undertaken in March 2020, and as previously notified under document IP/N/1/CAN/30. Specifically, document IP/C/W/672 asks “what kind of data was relied upon” in making these amendments. Here we recall that these amendments authorized the Government of Canada or another specified person to make, construct, use and sell a patented invention to the extent necessary to respond to the COVID-19 pandemic, clearly establishing that a compulsory licence could be assigned to a third party. These amendments are fully within the scope of the TRIPS Agreement, including existing flexibilities affirmed under the Declaration on the TRIPS Agreement and Public Health, and are in addition to Canada’s longstanding provisions on compulsory licensing. In our view, the considerations informing these amendments are distinct from those informing any consideration of the proposed TRIPS waiver, as Canada’s amendments are fully within the scope of the TRIPS Agreement. By contrast, our interest in further clarification on concrete IP challenges experienced by Members is intended to better assess why a waiver would be necessary, in relation to concrete issues, beyond the scope of the TRIPS Agreement and of these existing flexibilities, which again are already provided under and in relation to the TRIPS Agreement.

Madam Chair, while Canada remains fully open to hearing about the concrete IP challenges of Members in the fight against COVID-19, with a view to accordingly identifying any appropriate and consensual solutions, Canada’s focus remains resolutely on ongoing and concrete initiatives addressing the supply and distribution challenges posed by COVID-19. As noted previously, recent global cooperation initiatives like the ACT-Accelerator and its vaccines pillar, the COVAX Facility, are at the core of a robust, multifaceted and global effort to address the pandemic. COVAX is also at the core of Canada’s steadfast commitment to the development and delivery of safe, equitable and accessible COVID-19 vaccines; in support of this commitment, Canada has contributed more than CAD 865 million to the ACT-Accelerator, which includes CAD 220 million through the COVAX Facility Advance Market Commitment (or AMC) to purchase doses for low- and middle-income countries. As well, this contribution includes CAD 230 million to procure COVID-19 treatments for developing countries in response to urgent priorities identified by the ACT-Accelerator, as well as CAD 225 million in additional support for the ACT-Accelerator for the effective deployment of medical solutions against COVID-19 in developing and vulnerable countries. In addition, Canada’s most recent contribution to Gavi, the Vaccine Alliance, also includes an investment in the development of a mechanism to equitably reallocate vaccine doses through the COVAX Facility, either by donation or exchange. Most recently, in January 2021, Canada’s Minister of International Development was elected as the donor co-chair of the COVAX Facility AMC (also known as AMC-92).

With regard the TRIPS waiver proposal, Canada also reiterates that it remains open to hearing about the nature and scope of any concrete IP challenges experienced by Members related to or arising from the TRIPS Agreement, such that similar concrete solutions can be found. Canada looks forward to further discussion in the TRIPS Council on these important issues in this regard.

Thank you.

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