COPENHAGEN – While intellectual property rights has been ‘the elephant in the room’ in the climate change negotiations so far, officials predict that it could become the subject of heated negotiations – even at a higher political level – during the ongoing high-level meeting in Copenhagen. On the third day of the meeting, IP issues had already appeared in a proposed negotiation text.

[Editor's Note: the draft text on development and transfer of technology (based on non-paper 47 from Barcelona) being discussed at COP15 is now available here from Intellectual Property Watch.]

The United Nations Climate Change Conference (COP15) takes place on 7-18 December with some 15,000 participants and representatives from 192 nations. With 193 parties, the United Nations Framework Convention on Climate Change (UNFCCC) has near universal membership and is the parent treaty of the 1997 Kyoto Protocol. The Conference (used as in “association”) of the Parties (COP) is the supreme body of the Convention, meeting once a year.

“We need to be optimistic,” Haroldo Machado-Filho, Brazilian delegate in charge of technology transfer told Intellectual Property Watch.

Proposals related to development and technology transfer were until today reflected in a paper called “non-paper 47,” which came out of the last preparatory meeting, held in Barcelona in November.

However, after two informal (closed-door) negotiations on this paper on 8 December, a proposal was made to come up with a new, shorter version. The two facilitators of the contact group on this issue from Japan and Trinidad and Tobago had in the meantime done so, a government source told Intellectual Property Watch.

The source said the new text was shorter and more structured and most issues were still covered, including IP issues. The paper was not available at press time, but an informal session was scheduled to take place in the late afternoon on 9 December.

Non-paper 47 contains a range of IP-solution suggestions from the developing countries, ranging from having no patent protection on green technology, setting up a pool for green technology, ensuring that developing countries can make full use of the flexibilities found in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – including compulsory licensing – and cooperation on future research and development of green technology.

Machado-Filho said non-paper 47 was “inclusive” and “streamlined” and included “clear options,” including those that the Group of 77 and China favoured. “All options [are] on the table,” he said.

One developing country representative told Intellectual Property Watch on 8 December that it would be interesting to see what would be done with IP issues in the new text because “last time they threw it out,” referring to the Barcelona meeting when an attempt was made to move IP issues to the annex (IPW, Environment, 6 November 2009)

Machado-Filho said the non-paper from Barcelona (47) is “one of the best non-papers under the Ad Hoc Working Group On Long-Term Cooperative Action Under The Convention, which is discussing an agreement to succeed the Kyoto Protocol. A separate track at the meeting is discussing amendments and possible prolongation of the Kyoto Protocol, which expires in 2012. [Note: paragraph corrected]

In general, developed countries – and indeed a vast majority of countries at the meeting as stated by the Executive Secretary of the UNFCCC, Yvo de Boer – favour merging the two tracks into one agreement, while developing countries would like to keep two tracks and preserve the Kyoto Protocol with its country-specific targets and commitments.

In a 9 December plenary, countries such as India, China and Jamaica emphasised this, while Jamaica also supported “meaningful and relevant” technology transfers to developing countries. COP15 Chair Connie Hedegaard proposed setting up a contact group to discuss this issue.

Among the 12 non-papers that will be discussed at Copenhagen, intellectual property rights are also discussed in non-paper 42 on mechanisms for mitigation action (similar proposals as in 47), non-paper 54 on financial resources and investment and one non-paper on shared vision, Fredrik von Malmborg of the Ministry of Enterprise, Energy and Communications in Sweden, who follows the technology transfer and intellectual property issues under the EU Presidency, told Intellectual Property Watch.

Machado-Filho said that in terms of technology transfer, Brazil would like to see a “comprehensive system … that could encompass action” and would also deal with barriers. He said that such barriers are lack of knowledge about technologies, intellectual property and finance.

He said that while Brazil recognises that intellectual property rights are important to drive innovation, it can also be a barrier. “I believe patents can be barriers,” he said, and in the cases where they are, this should be dealt with. One example could be funding licences, he said. He added that while Brazil has its companies and develops its own technology, it is important that all developing countries’ needs in this area be reflected in a deal.

Danish Text and IP

Confusion and indeed disagreement took the centre stage in the afternoon at the meeting on 8 December when a Danish proposal apparently was leaked to the Guardian newspaper. Many developing countries found the text unbalanced in favour of developed countries.

But de Boer said in a 9 December press conference that the proposal had been discussed before the meeting and had “never been tabled in any formal way.”

When asked about the text at a press conference, however, a Bolivian delegate said that the G77 group of developing countries was “very disappointed” about the language on technology transfer in this text. IP is a barrier and must be removed, the delegate said, adding that we “cannot keep on business as usual” in terms of IP. International trade rules, such as TRIPS, have to be modified. For example, patents on some technology of the environment should be removed for developing countries and compulsory licensing be considered.

Today compulsory licensing is allowed under TRIPS, but the delegate said that each technology has a lot of patents and the developing countries have to go to each country and company and apply for a licence, which does not make sense in times of urgency.

Political versus Judicial

Sweden’s von Malmborg said that the 12 non-papers at the meeting will be the starting point and will possibly be merged in a final COP15 deal.

On IP issues, von Malmborg said the parties remained so far from each other that there could be a risk that the time spent on approaching each other on this issue would steal time from other issues.

He said that while developing countries such as China and Brazil had been more vocal on tech transfer and IP issues some time back in the negotiations, countries such as Bolivia, Venezuela and some African countries had taken over more now, although the G77 stands together.

IP a Must – but Difficult

A developed country official told Intellectual Property Watch that IP issues were bound to be discussed during the meeting, but it would be difficult.

“Intellectual property has been a question for a long time [in the COP discussions], but has so far not been subject to concrete negotiations,” the official said before the meeting, adding that it is a “non-issue” for the United States and other developed countries.

The official said IP appears to be ‘the elephant in the room’ that everyone expects will be the subject of heated discussions at some point.

The official believed IP issues are bound to end up at a “higher political level” during the two-week meeting, but as far as IP is concerned, he does not think there is a solution. Either the text would contain language on the importance of protecting IP, or there would be no mention of IP in the text of a possible agreement, he said.

In short, while developing countries sees IP as a barrier to tech transfer, developed countries argue it is an incentive for innovation, the official said.

Different Views

Separately and in parallel with the negotiations, various groups are voicing their hopes and opinions on IP.

A number of civil society groups and social movements from around the world have issued a statement warning against including language (or lacking clear language) in a possible COP15 deal that would enable the transfer of wrong – i.e., untested and unproven technologies – to developing countries.

“Technologies assessed as both environmentally and socially sound need to be exchanged. Intellectual property rules should not be allowed to stand in the way. But some technologies that are being promoted as ‘environmentally sound’ have foreseeable and serious negative social or environmental impacts,” it says.

This could be nuclear power, crop and tree plantations for bioenergy and biofuels or agricultural practices involving genetically modified crops and trees.

Meanwhile, the US Chamber of Commerce Global Intellectual Property Center (GIPC) said in a press statement, “If governments are serious about addressing climate change, and all agree that new technologies are a vital part of the answer, then IP laws and rights need to be protected in any Copenhagen agreement. Indeed, in our view, a Copenhagen Summit with NO mention of IP at all is a successful conclusion.”

The US-based Intellectual Property Owners’ Association took a similar position today.