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TWN
Info Service on Health Issues (Apr25/04) WHO: INB Bureau proposes alternative text to replace the definition of technology transfer Geneva, 10 April (TWN) – The Bureau of the WHO International Negotiating Body (INB) of the Pandemic Instrument proposed an alternative text to replace the proposed footnote that would have effectively been a definition of technology transfer. The footnote reads: “For the purposes of this Agreement, transfer of technology refers to an agreed process where technology is transferred on mutually agreed terms. This understanding is without prejudice to and does not affect the measures that Parties may take in accordance with their domestic or national laws and regulations, and compliant with their international obligations”. The Bureau’s proposal to replace the footnote came up on the third day of the resumed 13th session of the INB, which is taking place from 7 to 11 April at the WHO Headquarters in Geneva. The Bureau has provided five options. All except one propose the phrase “mutually agreed terms” reflected in the text. These options are:
These options are currently confined to the chapeau of Paragraph 1 of Article 11, and Article 11.1(a). It is not clear whether the same qualification will be placed in other paragraphs of Article 11 especially 5, which addresses “transfer of technology … including through the pooling of intellectual property, relevant knowledge, skills and technical expertise and data and transparent, non-exclusive licensing …” Paragraph 5 reads: “The Parties shall, in collaboration with WHO, identify, assess and, as appropriate, strengthen and/or develop mechanisms and initiatives that promote and facilitate the transfer of technology with a view to increasing access to pandemic-related health products, particularly in developing countries, including through the pooling of intellectual property, relevant knowledge, skills and technical expertise and data and transparent, non-exclusive licensing. Such mechanisms may, where appropriate, be coordinated by the WHO, in collaboration with other relevant mechanisms and organizations, enabling increased participation of manufacturers from developing countries. Further, Options 2 to 5 effectively obligate Parties to provide incentives only when the technology transfer takes place on a mutually agreed basis. However, it is not clear how the mutually agreed conditions would apply to different modes of technology transfer other than licensing, such as capacity building, relationship facilitating, incentives or conditions linked to research and development, procurement or other funding and regulatory policy measures. Textual proposals for these options are as follows: First Option: Bureau proposal from INB13 Footnote under Article 11: For the purposes of this Agreement, transfer of technology refers to an agreed process where technology is transferred on mutually agreed terms. This understanding is without prejudice to and does not affect the measures that Parties may take in accordance with their domestic or national laws and regulations, and compliant with their international obligations. Second option: remove the footnote and use language from FCTC Article 22 “as mutually agreed” after each mention of “transfer of technology” in the text: 1. Each Party shall, in order to enable the sustainable and geographically diversified production of pandemic-related health products for the attainment of the objective of this Agreement, as appropriate: (a) Promote and otherwise facilitate or incentivize transfer of technology and relevant knowledge, skills and technical expertise, as mutually agreed, for pandemic-related health products, in particular for the benefit of developing countries, through measures which may include, inter alia, licensing, capacity building, relationship facilitating, incentives or conditions linked to research and development, procurement or other funding and regulatory policy measures; Third option: remove the footnote and use the whole FCTC text from Article 22, with slight adjustment for clarity: 1. Each Party shall cooperate directly or through competent international bodies and, in order to enable the sustainable and geographically diversified production of pandemic-related health products for the attainment of the objective of this Agreement. Such cooperation shall promote the transfer of technical, scientific and legal expertise and technology, as mutually agreed. To this end, each Party shall, as appropriate: (a) Promote and otherwise facilitate or incentivize transfer of technology and relevant knowledge, skills and technical expertise, as mutually agreed, for pandemic-related health products, in particular for the benefit of developing countries, through measures which may include, inter alia, licensing, capacity building, relationship facilitating, incentives or conditions linked to research and development, procurement or other funding and regulatory policy measures; Fourth option: : remove both the footnote and “as mutually agreed”, and use “consensual” and “reporting procedure”: 1. Each Party shall, in order to enable the sustainable and geographically diversified production of pandemic-related health products for the attainment of the objective of this Agreement, as appropriate: (a) Promote and otherwise facilitate or incentivize consensual transfer of technology and relevant knowledge, skills and technical expertise for pandemic-related health products, in particular for the benefit of developing countries, through measures which may include, inter alia, licensing, capacity building, relationship facilitating, incentives or conditions linked to research and development, procurement or other funding and regulatory policy measures and to report thereon to the COP on a regular basis; Fifth option: remove the footnote and rephrase as follows: 1. Each Party shall, in order to enable the sustainable and geographically diversified production of pandemic-related health products for the attainment of the objective of this Agreement, as appropriate: (a) Promote and otherwise facilitate or incentivize transfer of technology and relevant knowledge, skills and technical expertise, where the initiation and the terms of the transfer are mutually agreed, for pandemic-related health products, in particular for the benefit of developing countries, through measures which may include, inter alia, licensing, capacity building, relationship facilitating, incentives or conditions linked to research and development, procurement or other funding and regulatory policy measures; … [For concerns over the draft negotiation text of Article 11 see Pandemic Instrument: A Narrow Approach to Technology Transfer.]
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