 Hello everyone, welcome to People's Dispatch. So the World Trade Organization had its ministerial conference last week, which concluded on Friday. And this conference was to take place in November, but had to be postponed because of Omicron variant that emerged at that point of time. So finally, the meeting happened. And it was a meeting which was being looked forward to by everyone in the health sector across the world, because it was going to discuss something which we have been working on everyone has been working on for the past almost two years, 18 months to be precise. And that is the trips waiver. The ministerial conference had to discuss this very important issue. Just to give you a brief trips waiver. This was a proposal that had been forwarded by India and South Africa, the two governments in October 2020 in the World Trade Organization in the midst of a raging pandemic. And both the countries asked the World Trade Organization that all types of intellectual property, be it patents, be it copyrights, be it trade secrets, they should be waived off for all medical products related to COVID-19. That could be medicines or vaccines or even ventilators, diagnostics, everything. The text, the final text after the ministerial conference, the decision that has come out is not so close to what India and South Africa had proposed in October 2020. So this is what we are going to discuss today. We have with us Gopakumar, K. M. Gopakumar, who's a legal researcher from a third world network and a very well known access to medicines activist who has been following patents and trade secrets and other intellectual property in the health sector for decades now. And we are going to, we will expect, ask him to unfold what happened at the ministerial conference and why didn't we have the text that we have now. Gopakumar, welcome to people's dispatch. So obviously my first question is going to be, how do you read the text that has come out, the final decision that has come out from the ministerial conference of the World Trade Organization. The text which has, or the text or the decision which is part of the 12th ministerial conference basically addresses a small issue that is the facilitation of export under a compulsory license. Article 31 F of the TRIPS agreement normally restrict the export of any products which is produced under a compulsory license only predominantly for domestic use. So that means countries who do not have the capacity to produce pharmaceutical product including vaccines cannot obtain a vaccine or a therapeutics under a compulsory license produced from elsewhere, right, because that country cannot export exclusively for another country. But this issue was resolved in 2005 through an amendment. Earlier it was a waiver in 2003. So this is called 31 bits of the TRIPS agreement. But the process involved to avail that facility that means process involved to produce an export for dominant portion of the Q&A, another country under article 31 and this involves cumbersome procedures. So till now only there is a one example of invoking article 31 bits. So this decision reduces some of the conditions under 31 bits and facilitate any portion you can export under a producer under a compulsory license. So to that extent, this the scope of this decision is very limited. First to the only to the vaccines and second, the freedom of operation you are obtaining under this decision is limited. It is only for the to facilitate the export under a compulsory license. So in a way it cures some of the problems involved or cumbersome procedures involved in the article 31 bits. Only to that extent, it's a it's an important step. But otherwise, this does not offer anything new to provide a freedom of operation, which goes beyond existing flexibilities. The answer is no, it doesn't go that extent, though the original proposal by the India as well as South African, and I would say that all 63 other 63 cost responses goes beyond the existing flexibilities, but this decision fails to go to that extent. And it's that's where that's where this decision is very limited in scope. So basically what India and South Africa had asked for is waiver of all types of intellectual property for all types of medical products, but what we have bought is only patents to be waived only for the vaccines. And that also not in an ideal form, because the trips agreement and some provisions were already allowing it more or less. Yeah, this decision based article 31 F that's obligation to article 31 F that means now you have the freedom to export any portion of what you produced under a compulsory license. First thing and second is clarify certain provisions of the agreement, including obligations under 39.3 which deals with the trade secret article 39.3 basically obligates countries to keep the information contained in the drug dosiers or vaccine dosiers as a trade secret. But there are two exceptions to protect public or or to avoid after taking measures against unfair commercial use you can disclose there are these are the two exceptions. Right. These are existing but nobody has used, but this decision also clarifies that nothing in 39.3 prevents you to enable the effectiveness of this. This decision that means if you issue a compulsory license. The regulatory agency can even share the drug vaccine dose years or the drug dose years so in this case it's vaccine dose years to another company and facilitate production so this is the an additional classification which is given in the decision. So what does this decision mean in practical sense which are the countries who will be export or not being able to export. We're hearing about China that China will not be able to make use of trips favor so can you clarify that point for us a little bit. That footnote which specifically targets China by stating that whoever, whoever declared known use of the decision on 10th of May are bound by that and other countries are also encouraged to do so. So, this is a kind of a contradiction the whole idea of this decision is to facilitate the export under a compulsory license, but the footnote says. The countries who are having the capacity is encouraged not to use it. So, we should understand that only a few countries are having especially a few developing countries are having the manufacturing capability in the vaccine space, and when they are encouraged to pop out then who is going to export. We like to wait and see, and this export should take place not only with the political will of one country which would like to get it imported, but it's also like many other factors like economy of scale. There should be sufficient orders, and then somebody who are having the manufacturing capability to be able to export. So, the practical use of this is that heavily depending upon the, not only political way but the economy of scale. So therefore we like to wait and see, but I am saying that there is a contradiction in the footnote one, which basically encourages countries who are having the capacity to opt out. So that contradicts with the very objective of the decision. So, we saw the negotiations go on for approximately 18 months. I would like to ask you what was happening at the backstage because we have been following this issue. A few of them were able to actually suppress the demand of more than 100 developing countries to come to a much more radical conclusion and from where we had started. I mean, we reached a disaster text. It seems like that WTO and the WTO has actually kneeled to the big pharma and profiteering of the big pharma. But what was happening at the backstage if we can explain a bit. I think the pressure was mounting slowly and steadily for a waiver, what is envisaged in the original proposal. But at the same time, we are also be realistic in the sense that you may not get what all you want, but to an extent where it is workable, right. So we all know that that's a reality of any negotiation, especially forums like WTO. But around November 2021, it became very clear that without a decision on waiver, nothing is going to move forward in WTO, especially the EU style of WTO's response to pandemic. So it became very clear and the WTO ministerial was cancelled that time due to the outbreak of new variant. Then the DG, that's the secret rate, took an initiative involving four countries known as now thought that involves the US, India and South Africa. So this process continued for four months and resulted in the text which was leaked around first week of March or second week of March and then we saw the slightly modified version of the text came out or table by the DG around third of May. The text-based negotiations was based on that DG's text. We started on 17th of May and continued for a month, almost a month. The negotiation continued and we have this decision. So when you look at the context to now, there is not much major changes. There are changes which from a developing and deep perspective removed much of the damages involved in the text. The earlier text involved many provisions which goes beyond the current obligations under the DG. That has been removed in many places but there are a few areas it still remains. But what went wrong from a developing and deep perspective is the thought process. So India and South Africa involved in the court process and we produce this text which is by and large based on the US demand. Please recall, you also table the text around June for further discussions. But it was not a waiver. It was based on a compulsory license, classifying certain provisions of the compulsory license provisions. So this text is the architecture of this or the structure of this text is based on the US proposal. The court process basically resulted in silencing of India and South Africa during the text-based negotiation. I would say they did speak but the proactively engaging in the text. That means the context is below minimum, below the expectations of when you look at the revised proposal of the developing countries, the 63 or 65 cost sponsors, it is below that expectation. So naturally we expect that these two, what you call the sponsors of this original sponsors of this text would proactively engage, proposes the language to improve the level of the text to a new level or to the expectation. And that did not happen because both these countries voluntarily kept silence, saying that they participated in the court process so they are not in a position to suggest new language. That way I think it was a trap the court process which basically bought silence from India and South Africa. It resulted in a text which is a highly skewed text, which I say the utility which I mentioned to you is only reduces certain elements of, certain elements of even this cumbersome procedures. Right, right. This is the green room, the famous green room tactics as we know where countries get silenced and obviously it is usually the developing countries. So to come out a little bit, we also know that there were many other proposals on table at the WTO, they were related to agriculture or fisheries and the others. Do you think those negotiations and would have also mattered saying that you can get something in the fisheries, do not push for the trips paper in the health sector. Did that also happen at the level of ministerial in that week in the last week. So there might be exchanges happening with other areas but the trips waiver text was not worth to exchange for something else at that stage. When the ministerial started, it is already watered down the text. So no sensible country would exchange their key interest in the area of agriculture or even fisheries for a trips waiver. So we were headed to this text anyways, that's what you would need. But so what we have now is that after two years of hard work by a lot of activists and civil society and people, and a support of more than 100 countries from across the world, and seeing the kind of disaster that we saw during the COVID-19 pandemic because of lack of access to medical tools, despite all of that buildup despite all of that mobilization from the common people and led by health movements. We have a text which does not really help us improve the situation at all. What is the road ahead for the common people and for the activists and the civil society now? How do we come together because this has created at one level a lot of expectations among common people also what can be done, but what is the road ahead according to you? Of course, we ended up in this two texts and it's a matter of disappointment for most of us involved in the process, but I would say, as an activist, I am eternally optimistic and we all share that optimism too. What is this 18 month campaign achieved? First, it conveyed a clear message that there is nothing sacrosanct about the crypto agreement and if the agreement needs to be critiqued and it needs to be debased in the coming days with more campaigning and more push for that and there is no need to accept the agreement as it is. And there is a need for it clearly shows that the intellectual property can not only patents, but the trade secret, the copyright and even design can affect the access to health care. So first point, second point, it forced you U.S. and many other developed countries who were critic of using crypto flexibilities to say that please use flexibilities, you don't need waiver you can use the flexibilities, right? Third, yeah. And third, it exposed the how the regulatory system rigged in favor of big companies and protecting their trade secret in the name of protecting quality and safety and efficacy of vaccines and biotherapeutics. So these are some of the key learnings from the process but we also notice that our own developing country governments need to understand this in a better way and they should understand the fact that whatever may be the human crisis, the farmer is not going to bring its eyes and the government support them is not going to agree even for an humanitarian ground. So that means, politically our governments needs to build our own local production capacities, our own science and technology and to create a favorable enabling favorable or enabling environment to maintain that capacity. So the conventional trade theory that okay you can get the medicine wherever it is cheap why do you maintain this is being seriously questioned. Yeah, these are the takeaways for me in the coming days. Perfect. Thank you. And yes, to more work at the global level at the national level. And I think we need to continue working on all forms of intellectual property. And I agree with you that we have been talking a lot about patents but how other kinds of intellectual property can and equitable response is something that a lot in the health movement have learned over the last two years and hopefully we will keep working towards it. Thank you again for being with us and we hope that you will continue your fight the way you've been doing for the past. It's not my fight. I think we all need to carry our struggles and our campaigning at the national level and then come to the global level I think we will be able to change the thing and with one decision the fight never or the struggle does not end here. I think it will lead to I'm sure it will lead to more organized and more more strong, you know, struggle in the coming days because we are better informed now what are these days are up to. We know the the fallacy behind the intellectual property rights and its implications on access. Thank you. Thank you. Thank you so much for being with us and sharing your important thoughts. Thank you.