With less than a year to complete a new global plan to combat climate change, the United Nations Framework Convention on Climate Change is under pressure to be able to move to a decision at the end of the year. But it is in the longer-term action plans that intellectual property issues are featuring most prominently, as parties to the UNFCCC aim to satisfy the need for growth in poor countries, and to mitigate effects of growth on the environment – a move that will require effective technology transfer.

Delegates to the UNFCCC last week in Bonn negotiated on a text that includes proposed measures on intellectual property as it relates to technology transfer.

A clock on the UNFCCC website counts down the seconds until deadline – a meeting in Copenhagen from 7-18 December – and parties to the convention have several chances to narrow differences if they are to be done in time: an informal meeting in Bonn 10-14 August, and two formal working group sessions, 28 September to 9 October in Bangkok and then 2-6 November in Barcelona.

Veterans of the intellectual property debate over pharmaceuticals have wondered whether the next big fight in IP will be over climate change technology, with some predicting that the stakes would be even higher: while many need medicine, everyone needs food, fuel, and answers to environmental deterioration, where much climate change-related technological development is focussing.

Critically, those most at risk for losing their productive capacity on food and fuel with the onset of climate change are also those least likely to have access to new technologies that might mitigate the problem.

But figuring out how to navigate legal waters while increasing innovation and technology transfer to places that need it most has proven tricky, even as the latest scientific thought is reporting that the effects of human action on the climate are already beginning to take their toll on the normal function of ecosystems, and that planning adaptation strategies is likely to be as important as prevention.

At the UNFCCC meeting in Bonn from 1-12 June, there were two major parts of the conference in which IP and climate change arose, according to participants and meeting documents, as well as several side events hosted by stakeholders from Geneva.

Three papers by the expert group on technology transfer, which gives advice only, that took positions on intellectual property generally advocated by industry were “welcomed” by assembled states and submitted to the subsidiary bodies for scientific and technological advice and for implementation. These two subsidiary bodies are considered “convention subsidiary bodies” and exist to provide advice to the conference of the parties, the UNFCCC’s governing body.

The “meat and potatoes” of negotiations over climate change and intellectual property rights, according to Dalindyebo Shabalala, the co-chair of the Climate Action Network group on technical cooperation, happened during the meetings of the Ad-Hoc Working Group on Long-Term Cooperative Action (AWG-LCA).

This group was tasked during the Bonn talks with discussing a negotiating text written by its chair on long-term cooperative action to cope with climate change, including mitigation strategies, adaptation strategies, and plans for financing, technology, and capacity-building associated with those strategies.

The Bonn climate change talks consisted of four parallel sessions: the meetings of the two subsidiary bodies, the AWG-LCA, and of another ad-hoc working group discussing commitments of countries signed on the Kyoto Protocol, a key agreement from the UNFCCC, where IP did not appear to feature so prominently, according to its documentation.

Side events co-hosted by the UNFCCC and the World Intellectual Property Organization, by the International Centre for Trade and Sustainable Development, and a submission by the Climate Action Network – a group of nongovernmental agencies concerned about climate change – discussed intellectual property’s role in combating the crisis. Presentations from the UNFCCC/WIPO event and the ICTSD event are available here. The CAN position paper is available here [pdf].

Meanwhile, underscoring the widening appreciation of the importance of climate change in all sectors, Director General Pascal Lamy announced during a recent World Trade Organization meeting that the WTO would soon be publishing a report on trade and climate change with the United Nations Environment Program. The report is expected to be released soon.

Intellectual Property in Negotiations

The AWG-LCA negotiating text written by its chair, Kishan Kumarsingh, sets out several options for measures to address intellectual property rights.

A 19 May version of the text [pdf], that was the basis for talks in Bonn, called for technology transfer and development to be aided by “operating the intellectual property regime in a manner that encourages development of climate-friendly technologies and simultaneously facilitates their diffusion.”

A second more specifically said that measures should be undertaken to remove IP-related barriers to trade and development, including the use of compulsory licensing, as well as pooling and sharing publicly funded technologies at affordable prices.

And a third option recommends that least developed countries be exempt from patent protection of technologies related to climate change adaptation or mitigation, including those needed to build capacity. It also stipulates that genetic resources not be patented by any corporation, including germplasm of plant and animal species.

Governments had called for these issues to be explored at the last meeting [pdf] of the working group from 29 March to 8 April.

Several countries also made submissions to the working group [pdf] expressing concerns about the potential role of IP rights in limiting the exchange of climate-related technologies.

A submission by China for the consideration of the working group says that the current intellectual property system “does not meet the increasing needs for accelerating [development and transfer and diffusion]” of technologies needed “to meet challenges of climate change.”

And Guyana said that IP rights “should not be a fundamental obstacle for fulfilling developed countries commitments on technology transfer” but that it should be recognised IP “is a major barrier and that adaptation does not attract private sector investment [so] there should be greater accessibility and affordability of appropriate technologies without compromising incentives for innovation provided by IPR protection.”

India suggested that rewards for innovation be balanced with “the common good of humankind,” for example by jointly developed technology and IP rights sharing. Argentina’s submission agreed, calling for international cooperation on research and development of specific technologies, and also for cooperation on dealing with any arising IP issues.

The Bali action plan [pdf], an official document setting out the parameters via which countries must negotiate on their way to Copenhagen, stipulates that IP-related barriers be addressed, for example through compulsory licenses and preferential pricing.

Experts On Intellectual Property

The Expert Working Group on Technology Transfer showed more deference on the issue of IP in climate change to the need to protect entrenched rights.

“Produce lower cost versions of imported technologies” and “adapt imported technologies to domestic markets and circumstances” but do so “while respecting relevant intellectual property rights,” said a chair’s text [pdf] for the group containing recommendations on future financing options for “enhancing the development, deployment, diffusion and transfer of technologies under” the UNFCCC.

The same report again cautions respect of IP while encouraging work to build “capacity needed to install, operate, maintain and improve the technology” and asserts that research and development “will be lower than optimal without financial incentives from government and protection of the intellectual property created.”

In a strategy paper for dealing with the long-term perspective [pdf], the expert working group calls for actions to foster IP protection, as well as to foster acceptance of the “need for good IP protection”, while noting that successful technology transfer “requires a balanced approach to intellectual property” including “ensuring that developing and developed country businesses and investors have opportunities to licence IP and that effective systems are in place to protect and enforce IP rights.”

The encouragement of such protection is, the report says, because “recent studies” (it cites one, put out by the Energy Research Centre of the Netherlands) demonstrate that IP is “not a major impediment to deployment and diffusion of technologies for mitigation and adaptation.”

The expert working group is currently chaired by Jukka Uosukainen of Finland. Its current membership is available in the annex to this document [pdf].