Intellectual Property and Sustainable Development

Technology Mechanism for Climate Change: Still in the Lab

The first set of 2010 climate change negotiations under the UNFCCC concluded in Bonn, Germany (April 9-11th) with no progress apparent on the Technology Mechanism referenced in Paragraph 11 of the 2009 Copenhagen Accord. 

In fact, the only real outcome of the meeting appears to be an agreement to hold two additional meetings for both Advanced Working Groups on Long-Term Cooperative Action (LCA) the Kyoto Protocol, as well as for both of these groups to prepare draft texts to facilitate negotiations.  Conclusion for the LCA and Kyoto Protocol Working Groups are available here and here, respectively.

Although developing countries are pushing for legally binding commitments as an outcome of the December 2010 Conference of the Parties (COP) in Cancun, this does not appear likely. 

The Copenhagen Accord (the Accord), in particular the way in which it was negotiated, has led to what observers at Bonn are calling a sense of “deep distrust” at this past meeting between developed and developing countries.  Australia, on behalf of the “Umbrella Group,” stated that the Accord was a clear expression of political will to combat climate change and gave direction for future work.  However, many are concerned that the Accord would result in the end of the Kyoto Protocol.

Specifically, regarding the Technology Mechanism of the Accord, or “enhanced action on technology development and transfer” as it is being negotiated under the in the Working Group on LCA, several issues remain undecided, based on outside reports, including whether:

• activities or outcomes of activities eligible for support can included “purchasing of licenses and other intellectual property (IP) issues”;
• implementation of the technology mechanism shall be funded by new financial arrangements to meet the full incremental costs of compliance;
• the mechanism should support removal of barriers to technology development and transfer and enhancing means to promote technology transfer;
• the Technology Executive shall, among many other things, “address intellectual property issues as they arise”;

and most significantly – whether Intellectual Property Rights (IPRs) will be mentioned in the text, and if so, whether:

• International agreements on IP shall not be interpreted so as to prevent parties from taking measures to address mitigation or adaptation to climate change (e.g. Articles 30 and 31 of the TRIPS Agreement);
• Global Technology Intellectual Property Pools for Climate Change are created;
• Steps are taken to share publicly funded technologies and know-how;
• Patents over environmentally-sound technologies for mitigation or adaptation are excluded from IP protection, including the revocation of any existing IP rights, in particular those that are publicly funded or those involving the use of genetic resources for mitigation or adaptation; or
• A recommendation is made that international action be taken to remove barriers to technology development and transfer, including those arising from IP rights.

In short, negotiators still have a range of options for how they choose to deal with the IP issue.  Obviously, industrialized countries are on the side of not weakening IP protection, with developing countries pointing to past experiences with the refusal to license non-ozone depleting (non-CFC) propellants to India and Korea, as well as experiences with essential medicines under the WTO's TRIPS Agreement.  But, interlinked to technology transfer is the issue of financing – the details of which are still skeletal as well and perhaps dependent on what becomes of the Copenhagen Accord. 

The next intersessional meeting is currently scheduled for the 1st-11th of June 2010 in Bonn, with the two additional meetings to be held between then and the Mexico COP in December.

Draft Danish Climate Agreement: "Respect IPR Regimes"

The draft Danish non-paper being circulated for comment contains the the following language on technology and intellectual property (the full text is available here):

Parties commit to enable the accelerated large-scale development, transfer and deployment of environmentally sound and climate friendly technologies across all stages of the technology cycle, respecting IPR regimes including protecting the legitimate interests of public and private innovators. Developed country parties commit to work towards doubling aggregate  public investments in climate related research, development and demonstration by 2015 from current levels and quadrupling the efforts by 2020. Parties stress the need for up front finance for inter alia technology capacity building, joint research and development and demonstration projects. Parties endorse the “Technology Mechanism” set forth in decision X5/CP15, containing a technology objective, a UNFCCC technology body, the development of technology action plans, the establishment of six Climate Technology Innovation Centres in developing countries, support to joint RD&D efforts between developed and developing countries, and technology support to nationally appropriate mitigation actions, and adaptation activities, by developing country Parties.

This is the only mention of IPRs in the Danish text, which has caused quite an outcry from Developing Countries, and what Secretary General Ban Ki-moon has described as exposing some "trust issues."

Unsurprisingly, the Danes and other Industrialized Nations have chosen to pursue "Option 1" - operating the IPR regime in a business-as-usual fashion - as described in FCCC/AWGLCA/2009/INF.1 pg 184, paragraph 187.  Developing countries have proposed other options for removing IPR related barriers to technology transfer, including: exemption of climate-related technologies and genetic resources from patent protection in some or all countries;  active use of the compulsory licensing flexibility contained in the TRIPS Agreement;  and establishing patent pools and other means of sharing IPR protected technologies, and associated know-how.  

Dissent in the Ranks: Apple joins PG&E, Nike, and others in parting ways with US Chamber

The US Chamber of Commerce, the largest trade organization in the US, is facing increasing dissent and desertion from its former members over the US Chamber's position on Climate Change policy. In parting ways, Apple's VP of Government Affairs wrote, “we strongly object to the Chamber’s recent comments opposing the E.P.A.’s effort to limit greenhouse gases." Apple joins another high-profile brand, Nike, in parting ways with the Chamber. Even more shocking, however, was the resignation of large utility corporations - PG&E, Excelon, and PNM Resources - from the ranks of the US Chamber. Apple has recently been promoting it computers as being more environmentally friendly than the competition. Its website now includes a "life-cycle impact" section. The US Chamber of Commerce has been strongly critical of both the EPA's use of existing legislation to limit greenhouse gas emissions, as well as proposed Climate Change legislation such as the Waxman-Markey bill. Internationally, the US Chamber has supplemented its existing Global Intellectual Property Center with The Coalition for Innovation, Employment and Development (http://www.thecied.org/). All three entities are pushing for a solution to the climate change problem that relies on innovation and technology development, complemented by a stronger global IPR regime. In particular, the US Chamber and its associated programs are arguing against compulsory licensing and other flexibilities of the TRIPS Agreement, which they contend presents a significant disincentive for current and future innovation in technology. Whether any members of the US Chamber disagree with this position is not yet clear, but perhaps the dialogue over domestic climate change policy will help to flush-out private disagreement(s) over innovation policy as well.

Labels: Climate Change, Compulsory Licensing, Green Innovation, Industry, IP, US Chamber of Commerce, Waxman-Markey