18. Intellectual Property Rights Spark Debate in Climate Talks
An August negotiating session on the United Nations Framework Climate Change Convention in Bonn ignited some interesting, albeit expected, sparks around the subject of intellectual property rights.
The United States - which is engaging more actively in the debate, but still a bit vague about many subjects - came out with one of the most definitive statements it has made as of yet on any subject in the negotiations.
The negotiations were carried out in sub-groups relating to the different sections of the Bali Action Plan, including mitigation (broken down into specific sub-sections), adaptation, financing, and technology development and transfer combined with capacity-building. During discussions on technology, the US initially signaled an interest in openly discussing IPRs, but later clarified that it would not be able to accept any decision that would in any way alter existing IPR agreements. According to the Earth Negotiations Bulletin, "the US oppose[s] any discussion of changes to the IPR regime and any text that [seeks] to undermine or weaken that regime, and requested its removal from the table.
Led by William Kojo Agyemang-Bonsu,the Ghanean co-ordinator for the G-77 and China group on technology, the unified message coming from developing countries was that they perceived intellectual property rights as a barrier to access to the technology that is necessary to address climate change with sufficient urgency. The group called for modifications in the IPR regime to remove such barriers. While the debate was cut short by the group facilitator, who urged parties to discuss the issue informally, it is clear that this is a particular point of contention, and will likely be one of the issues that will require significant work, both at and away from the negotiation table.
The current 200-page negotiation text that parties are working from contains several pages on ‘measures to address intellectual property rights'. The content is derived from submissions and comments from parties and observer organisations over the last year. The text specifies a number of concrete measures intended to leverage the IP regime so as to encourage development of climate-friendly technologies and facilitate demonstration, diffusion, and transfer of climate technologies to developing countries. One such measure is compulsory licensing for patented environmental technologies. A compulsory license is an authorisation granted by a government to someone else than the holder of a patent on an invention to use that invention without the consent of the patent holder. It is one of the flexibilities in relation to patent protection included in the WTO's TRIPS Agreement and has been used in recent years by a number of countries to address public health concerns.
Another measure is patent pooling through, for example, the creation of a Global Technology Pool that promotes access to the technology protected by the patents in the pool and ensures support on the associated know-how and trade secrets. Other suggested measures include: preferential or differential pricing for environmentally sound technologies (ESTs); innovative IPR sharing arrangements of development and deployment of ESTs; limited or reduced time patents; financial support through a technology fund that covers costs for developing countries; a possible Declaration on IPRs and ESTs for climate change; the creation of technology excellence centers in developing countries to support capacity-building; and the creation of an Executive Body on Technology functioning under the UN Climate Change Convention that would include an expert advisory group to assess barriers and make recommendations for action. Further engagement with the private sector was noticeably missing from the text, although it is a repeated point in the technology discussions.
Proposals related to compulsory licensing create discomfort among a number of developed country governments. This is also true of suggestions to revoke patents on essential and urgent ESTs or mandatorily exclude such technologies from patenting.
Behind the US position is a private sector concern that modifications or flexibility within the IPR regime could affect profits and disrupt a system they see as driving innovation. A letter by the Global IP Center of the US Chamber of Commerce Executive Vice-President during the Bonn talks commended the Obama administration for its clear and firm position that "was urgently needed to counteract the anti-IP rhetoric of developing nations ranging from Argentina to India to China... sending a clear signal that the UN negotiation text now on the table, which contains several IP proposals hostile to IP and innovation, is not acceptable to the US."
The European Union was more hesitant, saying that more consultations would be needed before engaging in further discussion on the topic. Proponents of strong intellectual property rights protection assert that these provide incentives for innovation, and that the true impediments to technology transfer are high tariff and non-tariff barriers, inadequate financing and limited infrastructure. This private sector position has received support from the US House of Representatives, which in June passed a foreign relations funding bill including instructions to US Climate Envoy, Todd Stern, that the delegation was not to accede to any proposal that could compromise IPRs on environmentally sound technologies owned by US companies.
At the same time, those leading US foreign policy from the executive branch have shown a slightly different approach to the issue. Following recent bilateral US - China talks on climate, the US deputy Special Envoy underlined the view that since China wants technology and the US wants action from China, there appears to be room for agreement. As to what is considered ‘action' from China, Secretary Clinton noted after her trip to Beijing earlier this year that there were numerous opportunities for partnerships to jointly develop intellectual property.
The topic will certainly receive a more detailed discussion in the next round of the climate negotiations in Bangkok at the beginning of October, yet like most issues on the table, the treatment of IPRs is unlikely to be fully decided until the final days in Copenhagen.