Letter to Biden Seeks to Ensure Copyright Is Included in the Proposed TRIPS Waiver - Receives Pushback From Sen. Tillis

October 14, 2021

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On September 27, PIJIP signed onto a civil society letter to President Biden regarding the proposed TRIPS waiver under debate at the World Trade Organization (WTO). The TRIPS wavier would suspend certain WTO obligations to protect intellectual property in situations where they are hampering the fight against Covid-19. It was originally proposed by South Africa and India. The TRIPS waiver now has the support of a majority of WTO Members, but Members have different opinions over how broad or narrow it should be.

The letter, endorsed by PIJIP as well as 11 civil society groups such as the Electronic Frontier Foundation and the Wikimedia Foundation, argues that the scope of rights covered by the wavier should include "all intellectual property rights" - including copyright. 

Copyright protects a range of information products needed to fight COVID-19. It protects computational algorithms used in the manufacture mRNA vaccines. It covers health information on product labels (and has been used in the past to block distribution of generic medicines). It covers software used in numerous healthcare devices including ventilators.  

In a Law360 story covering the letter, PIJIP Director Sean Flynn noted: "If [the waiver] was expanded to devices, then it could lead to more manufacturing of ventilators in more countries and that would be positive for the global supply, because ventilators are probably easier to make than mRNA vaccines," Flynn said. "We should certainly be maximizing the production of things that are easiest to make in other countries."

The following week, Sen. Thom Tillis wrote U.S. Trade Representative Katherine Tai objecting to the letter. His letter states "the inclusion of copyright is both unsubstantiated and unwarranted, and would impose devastating consequences on American creators, business, and workers, while doing nothing to advance the objective of combatting COVID." On the specific issue of copyright's interference with the right to repair medical equipment, he wrote: "If reform is needed to address certain issues, like a right to repair for medical diagnostic equipment, then such reforms should take place in Congress and in a transparent manner that accounts for different perspectives." Flynn remarked in a subsequent Law360 story that it is "good to see that Senator Tillis supports the right to use copyright to repair software-enabled ventilators and other devices."