COPENHAGEN – A draft text on development and transfer of technology was subject to intense – and indeed heated – discussions during the first week of the high-level climate meeting in Copenhagen. But no intellectual property was mentioned in the latest draft text that was issued on 14 December.

During the first week of the 7-18 December United Nations Climate Change Conference (COP15), intellectual property was discussed as part of a draft text (IPW, Environment, 10 December 2009) on development and technology transfer (IPW, Environment, 9 December 2009).

The new draft text issued on 14 December was not available at press time, but an informal meeting was scheduled. Two officials confirmed that no IP was mentioned in this latest version, which had been prepared by the facilitators of Japan and Trinidad and Tobago of the contact group on development and transfer of technology.

The issue of intellectual property could be read to be part of other issues such as financing and barriers, but it was not mentioned specifically as it was in the draft paper from 9 December, one official said.

In general, developed countries would prefer not having a mention of IP in a text on technology at all, while developing countries want explicit language on IP included. Many developed countries especially fear the scenario of ministers discussing IP and that it will stall the overall talks.

The idea is that the draft text will become one of a series of “COP15 decisions” on various issues, in this case technology, an official told Intellectual Property Watch. Most likely officials will continue negotiating in contact groups until mid-week when the ministers will take over, the official said. Some ministers started arriving already on 12 December.

There are two tracks at the COP15 meeting: One process is discussing the UN Convention under the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (LCA). This is where the development and technology transfer issue is discussed.

During the first week of COP15, on 11 December, the chair of the LCA issued a “proposed draft text” with some “place holders,” a developed country official told Intellectual Property Watch. Under development and technology, intellectual property is not mentioned. Another official said, however, that this paper would serve as an overall LCA paper, while the COP15 decisions would be more detailed on each subject, such as technology.

A separate track is discussing possibly supplanting the Kyoto Protocol, which is a separate agreement under the Convention. It expires in 2012.

As the African countries staged a walk-out on 14 December in relation to the Kyoto discussions, the negotiations were “suspended,” according to the BBC, and the overall negotiation plan ahead was somewhat murky at press time.

The African countries protested what they saw as unwillingness from developed countries to continue the Kyoto Protocol with new commitments beyond 2012. They especially blamed the Danish host.

The IP Discussion

IP rights were discussed based on the 9 December draft text on development and transfer of technology on 10 and 11 December. It was prepared by the facilitators, based on the “non-paper 47” that came out of the COP preparatory meeting in Barcelona.

Many officials said the parties were stuck on “old positions” on IP. But during the weekend (12 December), officials said that the paper was being discussed item by item, and it was decided to leave IP out of the discussion until they got to the IP language in the text, which was listed in Article 12 and in Annex VII.

The text suggested establishing a “Technology Mechanism,” but developing countries wanted clearer language on intellectual property listed directly under the mechanism’s responsibility, sources said.

The Technology Mechanism would consist of an “Executive [Body] [Committee]”; and a “Consultative Network for Climate Technology”. Further down in the draft (paragraph 12) the various options on intellectual property were listed, from “no reference to IPR in the draft COP Decision” to the two bodies mentioned above providing IP advice specifically.

Developing countries therefore wanted the paragraph below moved up to Article 5 of the paper, directly linked to the list of what the Technology Mechanism should consist of:

“12. Option 2 Decides that the Executive [Body][Committee] on Technology shall recommend to the Conference of the Parties international cooperative actions to support the removal of barriers to technology development and transfer, including those arising from intellectual property rights, taking into account the elements contained in annex VII;”

In Annex VII various IP options were listed, ranging from patent pools and no patents on green technology for developing countries, to an emphasis on developing countries’ right to use the full flexibilities contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Reactions

The IP disagreement reflects the general divide in the overall negotiations, illustrated by two 11 December press conferences held by China and the United States respectively. China stressed the responsibility of developed countries for a deal to be struck, while the US said there would not be a deal unless developing countries stepped up commitments.

China said that technology transfer is an obligation by developed countries, and they “should not use IP as an excuse for not delivering on their promise.”

China also said that IP protection had improved greatly in developing countries, including in China, and they welcomed any dialogue on this subject. But it said it was not a reason for developed [corrected] countries to do less than promised on technology transfer.

One developing country official told Intellectual Property Watch that it was “absurd” that developing countries today have to pay royalties whenever they produce technology such as solar panels, which would be an obvious green technology for many developing countries to produce and use.

“How can the developing countries move if everything has to be paid,” the official asked. Many countries have the technical capacity to produce technologies, but could not afford to pay the royalties to developed countries, he said. Even when developing countries come up with new technology, they have to pay royalties on many parts, the official added.

Izuru Kobayashi, director for climate change at the Industrial Science and Technology Policy and Environment Bureau in Japan and part of the Japanese delegation, told Intellectual Property Watch that negotiations would “hit the lock” and “everything will break down” if IP were to be part of the climate discussions.

He said on 12 December that developing countries wanted “special arrangements” for IP in the field of climate-related technology. “We [are] totally opposed to the view,” he said, adding that Japan actually wanted to strengthen IP protection on these technologies as it was not a barrier but an enabler in terms of innovation.

He also said that while developing countries want patent pools, Japan does not share that view at all.

“The beauty of a patent is that it is open,” he said, adding that this way one could see what kind of technology is patented and negotiate with the patent holder, which could differentiate the cost.

Kobayashi also said that many developing countries would need to cover project costs and he doubted that royalties would be more than that. This could therefore also be covered by public money, which the developing countries would need anyway.

More at Stake …

One developing country official told Intellectual Property Watch that for developing countries, more is at stake at Copenhagen than the climate.

“Developing countries realise that this is the most important forum in several years. What seems to be an environment discussion is more a political and economical negotiation,” he said.

The umbrella organisation International Indigenous People issued a statement suggesting that: “The intellectual property rights regime shall be modified in order to guarantee access to clean mitigation and adaptation technologies, particularly those developed with participation of public funding.”

Two representatives from Bangladesh and Kenya told Intellectual Property Watch that there should be some dedicated funds and indigenous peoples’ culture should be respected. They said that any technology cannot be patented as it belongs to the community, especially the green technology.

“In our values, we cannot patent it,” they said.