Ways Forward Proposed For Tech Transfer & IP At Durban Climate Talks

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As governments meet to look for ways to progress on halting global climate change, some are suggesting more discussion is needed on the sharing of the technologies that can fight that change, and a middle ground approach has been put forward to get them there.

The Geneva-based International Centre for Trade and Sustainable Development (ICTSD) has released a new policy brief entitled, “Overcoming the Impasse on Intellectual Property and Climate Change at the UNFCCC: A Way Forward.

The United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties seventeenth session is being held from 28 November to 9 December in Durban, South Africa.

India also has put forward a document, FCCC/CP/2011/INF.2/Add.1 [pdf], that includes proposals on: accelerated access to critical mitigation and adaptation technologies and related intellectual property rights; equitable access to sustainable development; and unilateral trade measures. IP rights have been pushed aside in the recent UNFCCC meetings.

Technology transfer is a “pillar” of the UNFCCC, according to ICTSD, as Article 4.5 of the convention requires developed countries to: “take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to environmentally sound technologies and know-how to other Parties, particularly developing country parties to enable them to implement the provisions of the Convention.”

The technology transfer issue was made a priority in the 2007 Bali Action Plan, adding the concept of affordability and measurability. The 2010 Cancun conference created a new Technology Mechanism with two main bodies: the Technology Executive Committee and the Climate Technology Centre and Network.

India argues that it is “essential” that this week’s meeting identify a forum and process to address these issues and find a way to keep them on the agenda in the future.

It says “a facilitative IPRs regime relating to climate-critical mitigation and adaptation technologies must form a cornerstone of a regime for advancing global actions to address climate change.” If the UNFCCC cannot advance the Bali road map, it said, then the issue must be reflected in the operational provisions of the Conference of Parties decision texts.

In Durban, India said, parties will “need to decide on a process and time frame that would best suit such a discussion.” It suggests launching a process under the Conference of Parties or in the Ad Hoc Working Group on Long-term Cooperative Action that requires it to come up with a “facilitative IPRs regime.” It also calls for “reintroducing the IPRs issue under the relevant AWG-LCA agenda item/process on technology.”

ICTSD Options

ICTSD, in its policy brief, stresses the urgency of establishing the basis for a “reasonable and balanced” discussion about IP and climate change technologies if there is to be effective international action against climate change.

Though the authors say it is “unlikely that in-depth substantive discussions on IPRs and climate change can take place at the Durban conference,” they say the gathering could “redefine the parameters and principles for a more technical and expert-level discussion, which could then take place under the UNFCCC framework.”

Discussions could occur under a “contact group on intellectual property” with a range of stakeholders including the private sector and civil society, which could focus attention on the issues that need to be addressed. They suggest moving on an “incremental” and gradual basis, starting with the non-controversial issues, later moving to options that “involve the use of IPRs and licensing as well as pooled procurement strategies.”

Getting these issues on track, they said, could contribute to “greatly increased public investments in both basic and applied research pertaining to green technologies.” It also could ensure all countries have affordable access to technologies, whether patented or not.

The paper highlighted the need for better information to better track patents related to these areas, and to find ways to encourage licensing options to middle income countries. Other suggestions in nuanced form are to expedite examination of green patent applications, build capacity in technology licensing agreements for developing countries, use patent pools and pooled procurement strategies, and use flexibilities to IP law available in international trade rules.

ICTSD lays out suggested parameters and principles in the paper. They are listed below.

Background

In the paper, the authors address three aspects that have continued to arise in the intergovernmental discussions: the parallel with and differences from access to medicines; IP rights as an incentive to innovation and as it impacts technology transfer and dissemination; and lessons from available empirical evidence.

The brief offers several “principles and parameters” for technical and expert-level discussion that can provide a middle ground for future work on these issues.

Despite some unanswered questions, ICTSD said the existing work in UNFCCC has the potential to become a “springboard for developed and developing countries to work together in order to accelerate the deployment and transfer of technologies for climate change mitigation and adaptation.”

Intellectual property rights has been a “constant source of controversy and disagreement among UNFCCC parties and stakeholders,” ICTSD said, noting the polarisation that has occurred. But the issue of IP rights has been considered for years, it notes, with a reference in the 1992 Earth Summit, among others.

Meanwhile, ICTSD notes from an analysis of the Organization for Economic Cooperation and Development (OECD) that patenting on clean energy and green technologies has rapidly shot up in recent years, and that six countries – Japan, the United States, Germany, Korea, the United Kingdom and France – accounted for almost 80 percent of patent filings in the area. Another study showed emerging economies increasing the number of these patents as well. But such patents are rare in low income countries.

And a survey of licensing showed that most respondents had not licensed in developing countries, suggesting that technology transfer needs a boost.

ICTSD concluded by listing key elements of the past debate on IP and technology transfer, validating both sides’ concerns, and builds a platform for future discussion. For instance, it said there could be a first package of “practical” and “technical” measures to build trust, and a second stage exploring the “complexity and diversity of policies, mandates, and concerns” in the negotiations.

The ICTSD paper was authored by Ahmed Abdel Latif and Pedro Roffe of ICTSD, Prof. Keith Maskus of the University of Colorado at Boulder, Ruth Okediji of the University of Minnesota Law School, and Jerome Reichman of Duke University School of Law.

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“What might be the procedural parameters and principles to guide these technical discussions? What further measures could be taken up? The following are some suggestions:

I– Procedural parameters

a) Discussions should be informed to the extent possible by empirical evidence and concrete examples.
b) The outcome of discussions should not be prejudged.

II– Principles
a) Recognition of the importance of IP protection in promoting clean energy innovation;
b) Emphasis that the global IPRs regime should facilitate the transfer and diffusion of climate technologies and ensure affordable access to them;
c) Balance between these twin goals of IPRs – protection and dissemination – in discussion outcomes, with an explicit focus on the unique role of IPRs in the context of public goods;
d) Recognition of any IPR-related barriers to the transfer of climate technologies to developing countries in specific cases;
e) Call for more empirical evidence regarding possible impact of IPRs on the transfer of climate technologies to developing countries by technology, sector, and country;
f) Consideration of all options within the framework of existing international instruments, including the rights, obligations, and flexibilities contained therein.

III– Towards an incremental and gradual approach
a) Discussions could begin by examining a first package of “practical” and “technical” measures to build trust, such as:
i. Improving availability of patent information on climate-related technologies;
ii. Improving availability of technological information in the public domain;
iii. Encouraging more favorable licensing terms of climate technologies to developing countries, including those resulting from publicly funded research;
iv. Fast tracking of ‘green’ patent applications.
b) A second stage of the discussions could follow that would focus on exploring possible options for addressing the complexity and diversity of policies, mandates, and concerns that feature in the climate negotiations. Some suggestions in the literature include:
i. open innovation in green technologies;
ii. patent pools based on voluntary licensing and other sharing arrangements;
iii. creative uses of existing flexibilities in international instruments, including the possibility of pooled procurement strategies;
iv. consideration of alternative intellectual property regimes, especially liability rules, for possible use in stimulating both local innovation in developing countries and the adaptation of green technologies available on the world market.”

William New may be reached at wnew@ip-watch.ch.

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