Intellectual Property and Sustainable Development

Columbian IP Agreement continues to Raise Human Rights Concerns

During Columbia’s periodic review by the Office of the UN High Commissioner for Human Rights, specifically the Committee on Economic, Social and Cultural Rights, several recommendations were made relating to intellectual property (IP) rights. 

The official UN report can be found here and CIEL’s publications relating to Trade Agreements and IP can be accessed here.

With respect to Access to Medicines, examining the US-Columbia Free Trade Agreement, the Committee noted that: 

The Committee is also concerned that the Free Trade Agreement (FTA) signed between the State party and the United States contains provisions on intellectual property that may result in increase of prices of medicines and negatively impact on the enjoyment of the right to health, in particular of those with low income (arts. 1, 12).

…In this regard, the Committee recommends that the State party consider revising the intellectual property provisions of the Free Trade Agreement signed with the United States, in order to ensure protection against the increase of the price of medicines, in particular for those with low income.  (para. 10)

With respect to development projects, including those that would be under the ambit of the Clean Development Mechanism (CDM) of the Kyoto Protocol, the Committee noted:

The Committee recommends that the State party take concrete measures to review the processes concerning infrastructure, development and mining projects and fully implement decisions of the Constitutional Court in this regard. The Committee also recommends that the State party review the Presidential Directive 001 and the draft bill elaborated by the Working Party on Prior Consultation of the Ministry of the Interior. The Committee further recommends that the State party adopt legislation in consultation with and the participation of indigenous and afro-colombian people, that clearly establishes the right to free, prior and informed consent in conformity with ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, as well as the relevant decisions of the Constitutional Court.  (para. 9)

On Biofuels, the committee notes that:

The Committee is concerned that the policy encouraging agro-exporting goods, such as agro-fuels, may deprive peasants from cultivating their lands. The Committee is also concerned about the unequal distribution of lands owned by a minority of the population, as well as about the absence of a genuine agrarian reform, as recommended in the previous concluding observations of the Committee (art. 11).

The Committee recommends that the State party develop agricultural policies which prioritize the production of food; implement programs that protect national food production with incentives for small producers; and ensure the restitution of lands taken from indigenous and afro-colombian peoples, as well as peasant communities.   (para. 22)

Regarding Access to Knowledge and Education:

The Committee recommends that the State party take immediate measures to ensure access of all children without discrimination, to free and compulsory primary education.  (para. 29)

In addition to these recommendations by the Committee, on GMOs the Seeds Group presented its report on Genetically Modified Organisms and the Human Rights of Indigenous Peoples in Columbia.  The report states: 

The policies and practices of the Colombian State concerning genetically modified organisms (GMOs) have violated, and threaten to continue violating, the rights of indigenous peoples in Colombia, including their rights to self-determination, prior consultation, participation, property, culture, food, heath, and a healthy environment.

In 2005, the Colombian State issued a decree that regulates the approval of GMOs. Though indigenous peoples will be affected by the release of genetically modified (GM) seeds, they were not consulted before the approval of this decree; nor does the decree provide for any consultation during the approval process for each seed. Under this decree, the processes by which certain GM seeds have been approved have violated the Colombian State’s obligation to apply the precautionary principle, and have not taken into account scientific studies that have demonstrated the threat that GM seeds pose to native seeds, human health, and the environment.

The next periodic report of Columbia is due to be submitted by July 2015.

Balancing or Swinging? Genes, ACTA and other Recent Developments in IP

The past thirty days have given those who follow developments in innovation policy quite a bit of material.  First, on March 29th, a US district court (SDNY) held that neither isolated genes nor methods of analyzing or comparing genes were patentable subject matter in Association for Molecular Pathology v. US Patent and Trademark Office (USPTO).   Then, recently, the very controversial and secret Anti-Counterfeiting Trade Agreement (ACTA) was officially released in draft form (available here).

First, in the case of genes, the ACLU is calling the court’s decision “a huge victory for womens' health and scientific freedom.”  

The case centered around Myriad Genetics’ patents over BRCA1 and BRCA2, genes which are associated with breast and ovarian cancer.  The plaintiffs challenged these patents as invalid, arguing that genes are not patentable under the “product of nature” exemption from patentable subject matter (35 USC s. 101).

Seemingly an obvious argument by the plaintiffs, the defendant bio-tech industry has argued (successfully) that genes – in their “isolated” or “purified” form – were not a product of nature and hence, a patentable invention.  The defendants’ lawyers repeated this argument before the court in this case, arguing for the patentability of Myriad’s claims over BRCA1 and BRCA2. 

However, the judge did not agree in the least bit with the defendants.  Judge Sweet held that a purified form of a natural product (e.g. a gene) must have "markedly different characteristics" than the unpurified form of that product to be patent eligible subject matter.  Then, citing in re Bilski (US Court of Appeals for the Federal Circuit), a decision which could invalidate thousands of business method patents if upheld by the US Supreme Court, the judge held that the method for analyzing the genes for cancer were not patentable either. 

If upheld on appeal, the BRCA case will have broadly sweeping implications.  The implication for health are clear – when available, doctors will be able to provide gene based tests, results and treatments at a lower cost, thereby increasing access and potentially lowering national health-care costs.

However, the case could also have implications for the food, biofuel, and other bio-based industries.  For example, patents over isolated genes and methods for their analysis are also found in many commercially viable transgenic plants (a.k.a GM crops/foods, GMOs, etc), owned by Monsanto, Syngenta and others in the very concentrated agriculture biotech industry.  For example, see Monsanto’s patent over “DNA constructs and Methods to Enhance the Production of Commercially Viable Transgenic Plants” (US pat. no 7,575,917).

Regarding genes and biofuels, see DuPont’s patent over genes for polyunsaturated fatty acid production using transgenic algae, bacteria, yeast and/or fungi (US pat. no. 7,695,950).  Algae is a second-generation (non-food crop) biofuel, which can be used to produce biodiesel and other biofuels.  Biodiesels are long chain esters, such as the polyunsaturated fatty acids produced by the transgenic algae claimed in DuPont's patent.  The US Dept of Energy claims that algae-based biodiesels are the only viable alternative energy source for automobiles, and thus it is no surprise that Exxon Mobil is investing heavily in algae biofuels.

Turning to ACTA, negotiating parties to the Agreement (US, EU, Japan, New Zealand, and others) – which is basically a new IP treaty in a thinly-veiled disguise – appear to have bowed to pressure from civil society, officially releasing the ACTA Draft.  Knowledge Ecology International (KEI), a leading NGO in advocating for transparency in ACTA negotiations, has stated that the disclosure comes far to late and is incomplete, lacking information on the negotiating parties‘ positions.  

ACTA negotiators are fudging the meaning of counterfeit, confusing copied products, where the consumer is aware of the authenticity of products such as generic medicine and audio/video reproductions, with actually counterfeit products – those which are intended deceive consumers.  Counterfeit medicines are very dangerous and a serious problem.  Awareness should be raised on this issue, but not by equating low-cost generic medicines to deadly counterfeit medicines.  This is the issue that has been at the heart of the ongoing dispute over the EU’s seizure of generic medicines that were in transit from India to Africa through EU ports. 

Medecins Sans Frontieres (aka, Doctors Without Borders) is concerned that the key elements of the ACTA - injunctions, border measures, criminal penalties and enforcement practices - may obstruct and deter legitimate generic competition.  MSF is also concerned about another anti-counterfeiting measure - the 2008 Kenyan Anti-Counterfeiting Legislation, which could not only impact the supply of anti-retroviral medications in Kenya, but throughout the African continent, given the influence of Kenya's laws on the legislative activities of other African countries.  Of particular concern are provisions in the Kenyan legislation on enforcement, and the vague definition of "counterfeit."  For more opinion and information, also see Michael Geist's blog and website on the ACTA (thanks Philip). 

Under current international IP and Trade agreements, TRIPS and the GATT, goods in transit - such as the generic medicines that were seized by the EU- are exempt from IP laws, which are territorial, while the goods are in transit.  In other words, under current international law, a Dutch patent on XYZ drug compound is inapplicable to a generic copy of that drug whose final destination is not in the Netherlands.  The enforceable patents in importing territory are what is applicable.  However, as suspected for some time, the draft ACTA agreement has the potential to go beyond current international IP norms and limiting access to medicines, depending on how the final negotiations shape up (see Dr. Henning Grosse Ruse-Kahn’s analysis of the ACTA text here)

So, are IP norms and laws moving towards a more balanced, a less “one-size-fits-all” approach?   In the case of gene patents, it depends what happens with the BRCA case on appeal, which might in turn depend on what the US Supreme Court has to say about the Federal Circuit Court of Appeals opinion in Bilski.  In the case of ACTA, in the end it will depend on what negotiators agree upon as the final text, which could depend on how much transparency is provided in the negotiations.  We'll see if US Trade Representative Ambassador Ron Kirk is correct when he said "people will walk away from the table" if the ACTA negotiation is made public.

Leading the Way towards Carbon Reductions

Heard of the Yes Men?  They are the incredibly straight-faced and gutsy duo that dare to go on the BBC TV and Radio, claiming to be from Dow Chemicals and announcing that Dow will compensate the victims of the Bhopal, India catastrophe with $12 billion from selling all assets related to Union Carbide Corp.  Dow purchased Union Carbide after the gas leak in Bhopal killed tens of thousands and continues to contaminate ground water in the area, probably under the assumption that their legal team could avoid paying the billions in restitution that is due.

Unfortunately, their routine is merely a hoax, disappointing hundreds of thousands of uncompensated victims.  Likewise, their stunt at the Copenhagen Climate Summit in December of last year gave everyone a glimpse of hope that the only country to abandon the Kyoto Protocol and home to the largest single source of industrial greenhouse gas emissions – Canada – was actually going to change its climate policy. 

No such luck.  Copenhagen went out with a fizzle as the Parties “took note” of the Copenhagen Accord.  An ambivalent reference to a vague document. 

Since then, China and India have associated themselves with the Copenhagen Accord.   There are still many nations which have not given any indication whether they will engage with the Copenhagen Accord.  The US-CAN website has an excellent table of which countries are on board with the Copenhagen Accord. 

The most recent country to not endorse the Copenhagen Accord was the Cook Islands.  In their letter of non-association to the UNFCCC, the Cook Islands identified the lack of clarity surrounding the “Technology Mechanism,” referenced in paragraph 11 of the Copenhagen Accord as being one of four major issues it found with the Accord.  In particular, the Cook Islands noted:

“[p]ast experience with the Expert Group on Technology Transfer has shown that mitigation technologies have received far more attention [than adaptation technologies'].”

As a small island developing state, the Cook Islands were one of several other island nations pushing for a 1.5 degree target at Copenhagen that would have reduced the likelihood of sending much, if not all, of their country underwater, which is predicted result from the 2 degree target under the Copenhagen Accord.   Many of the other small island developing countries have yet to respond (see US-CAN table above) to the Accord. 

The technologies and knowledge for adapting to climate change, which the Cook Islands accurately state as not receiving adequate attention, include technologies and knowledge such as:

• Medicines for combating increased incidence of vector borne diseases such as malaria;
• Water technologies, for economizing usage of freshwater, filtration & purification methods and desalination;
• Infrastructure technologies and knowledge for minimizing the disruptive effects of increasingly severe floods, storms and droughts;
• Crops for high-saline and low water growing conditions; and
• Advance warning systems for oncoming storms and pandemic spread of diseases.

These are what the most vulnerable populations will require to avoid the loss of human rights, such as the rights to life, food, water, health and adequate housing.  CIEL has articulated some practical steps for implementation of Human Rights and Climate Change law.  Many of these steps, along with integrating a rights-based approach into the Technology Mechanism of the Copenhagen Accord would help considerably in addressing the concerns of those countries and populations most vulnerable to the effects of climate change. 

Another potential tool is to lead by example.  The small-island developing state of the Maldives is doing exactly that.  While being one of the most progressive countries in examining the implication of climate change on human rights, they have associated themselves with the Copenhagen Accord AND are also setting the most ambitious mitigation target of any country:  100% reduction in greenhouse gas (GHG) emission by 2020.  In other words, the island nation is putting its words into action, and promising to be carbon neutral in ten years. 

Whether or not countries associate themselves with the Copenhagen Accord, arguments on all sides of the climate debate are only strengthened with stronger national commitments to GHG reductions.  Hopefully, other countries will follow the Maldives’ lead.  Perhaps the Yes Men can use their trickery to help shame all other countries and the private sector, not just Canada, into taking this path towards solving the problem, that which was forged by the Maldives. 

Renewable Energy Technologies for Rural Development

With the debate around patents and climate change-related technologies at Copenhagen last December, it became easy to forget that there are many low-cost and clean renewable energy technologies available in the public domain. A recent UN meeting highlighted how these technologies can revolutionize the way of life for rural communities.

Over 90% of rural Africa and 1.6 billion people worldwide are without electricity. Kerosene, firewood, and dried dung are relied upon by rural communities for lighting and cooking fuel. These traditional energy sources pose many health hazards, especially for women. Air quality is a major concern with kerosene and open fires, releasing carcinogens, airborne particles, and greenhouse gasses.   Women are disproportionately exposed to open fires for cooking. Midwives working at night have to rely on a dim, flickering light. In addition, women are also the ones who scavenge for firewood or transport kerosene, often in inhospitable terrain. Thus, besides being a health risk, this is also a tremendous loss of productivity for the village; as women in these villages are forced to spend more and more time in search of diminishing fuel sources.

In the Expert Meeting on Green and Renewable Energy Technologies for Rural Development, organized by the UN Conference for Trade and Development (UNCTAD), several promising solutions were described for providing electricity and cooking gas for rural communities. These solutions – solar, biomass-to-electricity, biomass digesters, geothermal, micro-hydro and micro-wind power – were each shown to be particularly affordable and technologically promising in a variety of settings.

One of the most important messages to come out of the meeting was that the technologies deployed must be reliable. To ensure a reliable alternative energy supply and to help empower rural women, one man has started a brilliant effort to ensure solar power takes hold in these villages. A major problem with previous efforts in using solar power in rural settings was the inability to maintain and repair the necessary equipment. Training young men as solar engineers proved futile, as they would quickly leave to more lucrative urban markets.

But, Mr. Bunker Roy, founder of Barefoot College of India, has found a solution to this problem: training illiterate grandmothers. From each African village, he brings an illiterate grandmother back to India for a month of intensive training on solar photovoltaic system maintenance and repair. Learning alongside other grandmothers from villages throughout Africa, the newly-trained solar engineers return to their home village with a newfound sense of confidence and purpose. And, most importantly, they remain in their village, providing a much needed service and passing on their knowledge.

With the provision of clean, off-grid electricity from solar panels, the air is cleaner, the village is more productive and women are becoming empowered. What’s more, it makes clear economic sense. The cost of a solar system large enough for several lanterns is roughly the cost of one year’s supply of kerosene. But, solar energy can only solve some of a rural communities energy needs. Other experiences showed that there are other alternatives which can meet the need for sustainable development in rural communities.

In Nepal and Cambodia, biogas has proven to be a clean and reliable source of cooking fuel. Micro-wind and Micro-hydro are being deployed in Vanuatu and Mozambique, respectively. Many countries are experimenting with “mini-grids” to supply the generated electricity. The Zambia is exploring alternative distribution models, rolling out “energy kiosks” in several villages. India has a program to provide efficient cooking stoves to rural areas in an effort to reduce air pollution.

Several countries are re-visiting previous efforts for large-scale alternative energy generation as well. The Zambia is resurrecting a geothermal plant from the 1980’s to help it cope with an increasing energy deficit, which they attribute to climate change, due to lower levels of hydroelectric power production in recent years. Mauritius is revisiting the feasibility of wind turbines, especially recent advancements that allow for them to collapse during cyclones.

But, there are challenges. First, financing is still a challenge, even with the technologies being off patent protection and in the public domain. The Kyoto Protocol’s Clean Development Mechanism (CDM) has provided some funding, e.g. for Biogas projects in Nepal, but the CDM is geared towards large projects and has a cumbersome administrative process. However, promising financing solutions are gradually being offered. There are also cultural challenges. For example, one effective solution for rural China – placing toilets on top of biogas digesters – was suggested as being culturally untenable in at least one country by a speaker. Finally, there is the challenge of education. Accessing knowledge on what has worked and failed in other villages is crucial. An unnecessarily poor experience with a particular technology can retard the adoption of that or other technologies by a village for several decades. In addition, it is necessary to educate villages about health and environment concerns, such as smoke inhalation and climate change, in order to generate further demand for these renewable energy technologies.

Despite these challenges, this meeting showed that there is much promise in bringing clean electricity to rural villages around the world. With electricity, much more will be possible, including the ability to provide irrigation for farming, encourage education, and generally enable human development in the broadest sense.

First published at WorldChanging.com - check it out here: http://www.worldchanging.com/archives/010993.html

Failed Efforts in Protecting Biodiversity - NYTimes.com

For the record, the word [Biodiversity] — a conflation of “biological diversity” — is variously defined, but I will borrow from the Center for International Environmental Law, a nonprofit organization with offices in the United States and Switzerland.

“Biodiversity is the variability of all living organisms,” the center said, “of the genes of all these organisms and of the terrestrial, aquatic and marine ecosystems of which they are part.”

via www.nytimes.com

A very good article, not just for its excellent choice of definitions...

Shell Makes a Major Move into Biofuels

It was reported today by Bloomberg that Shell has signed an agreement with Cosan SA Industria & Comercio to start a Brazilian ethanol venture to expand its stake in the biofuels market.  This comes after recent announcements by Shell to shift away from Solar and Wind energy. A separate article in Bloomberg states that this is agreement "may give the oil company shared control of the world’s largest sugar-cane processor."

Shell would contribute over US$ 3 billion in cash over 2 years and almost 3,000 service stations for distribution purposes, in exchange for a 49% stake in the venture.  Cosan will have a majority stake in the joint venture and control ethanol operations. Both companies will have the option to buy each other out after 10 years.

Brazilian first-generation ethanol is made from sugar cane, which is calculated as having a slightly (but significantly) lower carbon footprint than corn-based ethanol, from which US ethanol production is based.  However, cellulosic ethanol, a second-generation biofuel, is particularly appealing because is uses inedible biomass.  This avoids some of the concerns over food crops being used for fuel, which has raised the price of food staples like corn and soy in recent years.

There are, however, concerns over deforestation that will likely will accompany increasing demand for acreage devoted to sugar cane and/or biomass production.  Recent studies have exposed a mis-calculation in the carbon footprint of biofuels due to land use changes, such as deforestation from planting crops for biofuels (see earlier blog post).  Activists are also concerned about human rights violations among laborers working in sugar cane fields.

Shell has been investing in biofuel research and development for some time now.  It has invested in Codexis, Inc. and Iogen Energy Corp. for the commercialization of biofuels and the development of cellulosic ethanol.  Thus, Shell's decision appears to be more along the lines of maximizing synergies and profits among its pre-existing liquid fuel infrastructure, rather than a rejection of the long-term viability of wind and solar.  

Other multinational energy corporations have also entered the biofuels market.  Exxon has been showing off its excitement over the promise of algae based biofuels through a splashy marketing campaign, which appears to have ended with the Copenhagen Climate Change conference in December.  Chevron is also pushing research into celulosic ethanol commercialization, forming research agreements with at least 4 major US Universities and a joint venture with timber giant Weyerhauser Co. (Catchlight Energy LLC).  BP is competing with Shell in the Brazilian ethanol market, having previously invested in Tropical BioEnergia SA and pledged US$ 6 billion over the next several years.

What Obama means by "clean," part 1

Perhaps misinterpreting our earlier post, President Obama named these "clean" technologies as critical to ensuring American competitiveness and recovery from abysmal employment levels (minute 23 of yesterday's state of the union address):

• Nuclear
• Clean Coal, i.e. Carbon Capture and Sequestration (CCS), i.e. finding somewhere other than the atmosphere to dump CO2
• Opening new areas for off-shore oil & gas development
• Biofuels

The Intergovernmental Panel on Climate Change (IPCC) has provided estimates of air emissions from various CCS plant designs. While CO₂ is drastically reduced (though never completely captured), emissions of air pollutants increase significantly, generally due to the energy penalty of capture.  Some proposals suggest dumping carbon masses deep into the oceans, exacerbating the problem of ocean acidification, which is due to anthropogenic carbon being in the atmosphere in the first place.

US biofuel production is predominantly corn-based ethanol, which raises numerous concerns regarding pollution, net generation of greenhouse gases, and food security.  Internationally, deforestation - especially of biodiversity-rich forests in South America and South East Asia - is also a major concern. 

Not exactly what environmentalists were hoping for. 

Counting beans for bioenergy

The October 23rd issue of Science has an interesting study, "Fixing a Critical Climate Accounting Error," in which the authors contend that across-the-board exemption of carbon dioxide (CO2) emissions from bioenergy -- the use of plant materials known as biomass for the production of renewable fuels -- is improper in greenhouse gas regulations, if emissions due to land-use changes also are not included. According to a summary by the Woodrow Wilson School of Public and International Studies at Princeton University:

"[The prior method of calculation] treats all uses of bioenergy as carbon-neutral, renewable energy regardless of the source of the biomass, and could create strong economic incentives for large-scale land conversion as countries around the world tighten carbon caps.

According to the researchers, the greenhouse gas consequences of using bioenergy vary greatly depending on the source of the biomass. For example, if plant growth increases to produce bioenergy, as when fast-growing trees or grasses are grown on degraded land, bioenergy reduces global warming because the plants absorb more carbon from the atmosphere, which offsets the CO2 emitted by burning the bioenergy.

However, if bioenergy use results from burning wood chips from existing forests for electricity, or clearing rain forests to grow palm oil and other crops for biofuels, bioenergy does not reduce greenhouse gas emissions, and instead may increase them. Thus, the accounting rules in these legal measures mistakenly exempt the CO2 emitted by bioenergy regardless of the source, according to the authors.

Neither the Kyoto Protocol, nor the existing or proposed climate legislation in Europe and the United States, currently applies limits to emissions from land use such as deforestation. Because of that, the exemption of the CO2 actually emitted from the burning of biofuels and wood for electricity means all forms of bioenergy are treated as carbon neutral, which creates incentives to clear land."

According to a number of studies, applying this incentive globally could lead to the loss of most of the world's natural forests as carbon caps tighten. The Intergovernmental Panel on Climate Change (IPCC) estimates that the cutting down of forests is now contributing close to 20% of the overall greenhouse gases entering the atmosphere. Forest degradation also makes a significant contribution to emissions from forest ecosystems. Co-author Philip Robertson states: "The promise of cellulosic biofuels is huge for our climate and economy. We don't want to find out later that we've built a new industry on a house of cards."

Labels: Climate Change, ESTs, Green Innovation