TWN Info Service on Intellectual Property Issues (June09/08)
15 June 2009
Third World Network

Please find below discussion on IP that took place in the context of the climate change negotiations under the UNFCCC that ended on Friday.

Regards
Sangeeta Shashikant
Third World Network
email: sangeeta@thirdworldnetwork.net

Wide North-South divide over IPRs and climate technologies

Bonn, June 9 (Meena Raman) - Developing and developed countries were clearly divided over the treatment of intellectual property rights (IPRs) over climate-friendly technologies at negotiations under the United Nations Framework Convention on Climate Change.

The informal plenary under the Ad-hoc Working Group on Long-term Cooperative Action (AWGLCA) on 6 June began its first reading of the negotiating text on the issue of technology and capacity building.

The issue of IPRs in relation to climate-friendly technologies was clearly controversial in the negotiations. While several developing countries including Bolivia, the Philippines and Indonesia called for the exclusion of patents over such technologies, developed countries such as Japan, Canada, Australia, Switzerland and the United States insisted on strong IPR regimes. They even opposed the use of compulsory licensing for patented technologies, which is allowed for under the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPs).

Developed countries maintained that a strong IPR regime was necessary to ensure innovation and the development of technology. The developing countries on the other hand, argued that there was a need for patent exclusion on climate technologies, given the need for a global and systemic response to address the global challenge of climate change. They said that the existing flexibilities to overcome patent barriers under TRIPs was an inadequate remedy, as these required a case by case national response that was still fraught with obstacles and difficulties in using the flexibilities.

Apart from the IPR issue, the United States and Australia also questioned the need for new institutional arrangements as proposed by the G77 and China for a technology mechanism to enhance technology development, diffusion and transfer. Developed countries stressed the need for the establishment of enabling environments and national policies that would enhance investments in climate technologies in developing countries.

Developing countries on the other hand emphasized the legally binding commitment of developed country Parties under the Convention to enable technology transfer, emphasizing the role of developed country governments in this regard. The private sector played a complementary role but cannot be a substitute for public sector actions.
Developed countries also stressed the need to link technology needs of developing countries to low-carbon development strategies.

Ghana speaking for G77 and China, said that in relation to measures to address intellectual property rights, the Group had difficulty with option 1 under paragraph 187 in the text that states that technology development, diffusion and transfer be promoted by operating the intellectual property regime in a manner that encourages the development and transfer of climate-friendly technologies. It indicated that the Group will have a new formulation of the text that would reflect their interests.

It said that the entire structure of the negotiating text had to be modified to include the Group's proposal for a technology proposal under the Convention. The role of the private sector in technology research, development and transfer has to be recognised but it cannot be a substitute for actions needed from developed countries. Financing for technology transfer and capacity building must be new, additional, stable and predictable. There is a need to streamline nationally appropriate mitigation actions, technology road maps, action plans and needs assessments to ensure that there is no multiplication of documents to be prepared by developing countries before there is cooperation on technology.

In reference to the term “framework for technology” in the negotiating text, the Group wanted to know what it meant. The Group had difficulties as regards paragraph 180 (f) of the text which reads as follows - “{Stimulate the formation and development of national and international innovation systems and markets for technologies for mitigation and adaptation, creating favourable investment and enabling environments, and engaging the private sector;}

It also asked for the deletion of proposals that call for voluntary technology oriented agreements within and outside the Convention. On institutional arrangements, the Group would like to see clarity in the proposals to ensure consistency with its technology mechanism proposal.

Bolivia said that in relation to IPRs, there was a need for measures to allow for the mandatory exclusion of technologies for adaptation and mitigation. Where relevant, there was a need for the revocation of existing patents linked to climate change. There was also a need for immediate measures that can facilitate patent pools and know-how. Changes to the international IPR regime was also consistent with the payment of the climate debt for adaptation that is owed by developed countries to developing countries. Patents promote monopolies and this even goes against the free market thinking. The current flexibilities under the TRIPs regime to overcome patents are insufficient to face the global challenge of climate change. The flexibilities have to be on a case by case basis which slows down technology deployment. Hence, there was a need to rethink the whole IPR architecture.

Indonesia also noted that the TRIPs Agreement, while providing flexibilities to overcome patents, does not provide for a systemic and comprehensive solution to address the climate challenge. A case by case response at the national level was also fraught with the lack of capacities and various obstacles and is therefore not a sufficient and effective remedy to deal with a global emergency like climate change. Hence, there was a need for a systemic response in dealing with the exisiting IPR regime.

Philippines also called for patent exclusion in relation to climate technologies. There was also a need to increase the flexibilities under the TRIPs Agreement.

Ecuador on behalf of several Latin American countries said that measures to address IPRs was important, such as complusory licensing, the promotion of innovation through alternative mechanisms, access to publicly funded technologies, the creation of patent pools, free access to technology resources and the provision of price incentives and other forms of incentives.

Nicaragua, speaking for several Central American countries said that it supported measures for the removal of barriers to technology transfer such as IPRs.

Turkey also said called for a review of IPRs and for flexibilities in addressing IPRs.
India said that there must be provisions in the text to accelerate technology diffusion and transfer to enable the early lock-in of climate technologies. The text calls for a number of documents and technology assessments to be done for technology cooperation but these cannot be alternatives to actions. The technology framework must enable support for short-term, medium-term and longer-term technologies. There was a need for a hard look at IPRs to ensure that technology transfer is accelerated especially in areas where there were cartels.

China stressed that in relation to climate change, Parties are not talking about commercial issues but about a global public good to combat climate change. There was a need for public-private partnerships over technologies. There was need to develop a logical framework to reach a solution, linking technology, finance and the issue of IPRs. It wants IPRs to motivate innovation but where it is unfair and the IPR system damages innovation through unfair monopolies, there needs to be a solution. There was a need to have an innovative development of the IPR system to address climate change.

Brazil said that technology transfer is a commitment by developed country Parties to developing countries. There must be innovative approaches to remove barriers to technology transfer. There should be no conditionalities that create new barriers to technology transfer.

South Africa speaking for the Africa Group said that it would like to see all the stages of the technology cycle to be linked to finance, noting that the various stages would require financing and capacity building interventions. It said that there was a lot of emphasis on private sector funding for technology and stressed that public sector financing was essential. Technology action plans cannot be used as a foundation for funding as it could be impose conditionalities.

Belize for the Alliance of Small Island States (AOSIS) said that in relation to technology roadmaps, the needs of the Small Island States and least developed countries (LDCs) must be addressed.

Uganda for the LDCs said that the institutional framework should be small and effective, with a technology committee with executive powers, drawn with participation from various regions.

Australia said that options in the text for specific measures to be established to remove barriers to development and transfer of technologies arising from IPRs including through compulsory licensing for specific patented technologies; the pooling and sharing of publicly funded technologies and the exemption from patent protection for LDCs were inconsistent with the TRIPs Agreement. It would be detrimental to technology development without strong incentives as according to the World Intellectual Property Organisation (WIPO), a strong and effective IPR regime would facilitate technology innovation.

It also said that in relation to technology cooperation, there was a need to include all Parties' common responsibilities. There was a catalytic and facilitative role of the technology framework in relation to a wider range of activities external to the UNFCCC. The current text focuses on new institutional arrangements. There was a need for cohesive actions first and then the appropriate institutions. The private sector should be enhanced to play a role. It was important for technology actions plans to be linked to technology roadmaps. There was a need to link technology needs assessments to low carbon strategies.

Japan also expressed concerns over the proposed measures to address IPRs in the text. The example of IPRs over medicines in health is completely different from environment and energy technologies. The cost of IPRs in environment and energy technologies is much lower than that of medicines. While technologies in medicines are limited, that is not the case for environment and energy related technlogies. According to a special report of the IPCC, the main barrier to technology transfer is the lack of data or information and not IPRs. A report from D-G Trade of Europe also concluded the same that IPRs are not a barrier for climate technologies. IPRs are a source of innovation and its driving force. Thus, IPR protection is essential. Compulsory licensing and technology-sharing do not have a role in technology diffusion. There was a need for a more effective solution.

Canada said that strong IPR protection enables investments and is an incentive for the private sector. It had strong and fundamental concerns about options to change the IPR regime and cannot support such proposals.

The US also had concerns about the treatment of IPRs, which were an essential building block for technology innovation. Empirical evidence showed that robust IPR regimes promote technology development and innovation.

It also suggested that a new section be introduced in the text for common and cooperative actions. It would also like to see the linking of technologies to low carbon strategies. It was not convinced that new institutional arrangements would facilitate technology transfer. Technologies will be adopted when Parties have national policies that could enhance internal and external investment in technologies.

Switzerland said that an enabling environment was a prerequisite for technology transfer. There was need to have an environment that protects private property and IPRs. It had strong reservations over options in the text that call for compulsory licensing for patented technologies. IPR protection is an incentive for the private sector.

The European Union said that it was important to see the link between technologies and the concept of low carbon development strategies. Low carbon development strategies were a vehicle to identify and support technology needs and capacity building needs. The Copenhagen outcome can catalyse and facilitate technology research, development, diffusion and deployment.