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.

Human Rights, Technology Transfer & Climate Change

On the margins of the WIPO Committee on Development and IP (CDIP), CIEL organized a series of presentations and commentary on the topic of Human Rights and Technology Transfer, in the context of climate change.  Information on what agreements were reached in the CDIP can be found on the CIEL IP Quarterly Update, Second Quarter of 2010.

The speakers included:

• Mr. Robert Archer, Executive Director of the International Council on Human Rights Policy (ICHRP)
• Mr. Michael Waibel, Post-doctoral researcher at Cambridge University
• Mr. Baskut Tuncak, Law Fellow, Center for International Environmental Law (CIEL)
• Ms. Caroline Dommen, Quaker United Nations Office (QUNO)
• Mr. Subhas Gujadhur, First Secretary of the Permanent Mission of Mauritius to Geneva

Mr. Archer began the event with a summary of the Human Rights dimension of climate change, based in part on their earlier publication “Climate Change and Human Rights: A Rough Guide.” 

Mr. Waibel followed with an overview of Technology Transfer in the International Agreements on intellectual property and environmental protection.  His presentation can be viewed here.

Mr. Tuncak then spoke of how and to what benefit human rights obligations can inform discussions on technology transfer.

Finally. Ms. Dommen and Mr. Gujadhur provided their perspective on the preceding presentations. 

For further information, please see IP Watch’s coverage here and/or contact Baskut Tuncak at btuncak [at] ciel [dot] org

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.