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Rio+20 Climate Talks Finish With Little IP; Flexibilities Under Fire

RIO DE JANEIRO – Many of the technologies that can make the world more sustainable are available today. But how to transfer such green technologies to those most in need of them remains a question on which there are starkly divergent views – even after last week’s much-anticipated Rio+20 leaders’ summit.

At the heart of the bitter feud is interpretation of intellectual property rights and their role in fostering innovation. Rio+20, formally called the United Nations Conference on Sustainable Development (UNCSD), concluded on 22 June in the Brazilian coastal city of Rio de Janeiro. It demonstrated once again that major industrialised countries, where most green technologies originate, do not agree with the developing world’s position on how environmentally sound technologies (EST) ought to be disseminated.

The final outcome document is available here [1].

Developing countries argue that in order to transition to a more sustainable economy, they need access to green technology on terms that are favourable to them. Industrialised countries strongly question this position. They say that a strong intellectual property rights regime is fundamental to innovation and any attempts to dilute that will adversely impact research and development of EST.

In the negotiations in the run-up to the high-level segment of Rio+20 (20-22 June) that brought together world leaders, there was a bitter feud between the two groups on the issue of IPRs and EST or green technology. The developing countries reportedly tried hard to get a firmer commitment on access to green technologies, and wanted to explore modalities for better access to such technologies, but this was stiffly resisted by the major industrialised economies.

At the end, the global summit’s 49-page outcome document, entitled The Future We Want, a compromise text, facilitated by host country Brazil, made it amply clear that neither of the contending sides – the Group of 77 + China representing the developing world and the industrialised countries – had fully got what they wanted on this vigorously contested subject.

The outcome document, comprising world leaders’ plans for sustainable development, is high on general intentions and weak on specifics, especially on means of implementation.

There are general references to technology transfer but the language is non-committal on all sensitive issues including to EST and IP rights.

It states: “We emphasize the importance of technology transfer to developing countries and recall the provisions on technology transfer, finance, access to information, and intellectual property rights as agreed in the Johannesburg Plan of Implementation, in particular its call to promote, facilitate and finance, as appropriate, access to and the development, transfer and diffusion of environmentally sound technologies and corresponding know-how, in particular to developing countries, on favourable terms, including on concessional and preferential terms, as mutually agreed. We also take note of the further evolution of discussions and agreements on these issues since the JPOI.”

The conference in Johannesburg marked the 10th anniversary of the 1992 Earth Summit.

The document also talks in general terms about “the role of foreign direct investment, international trade and international cooperation in the transfer of environmentally sound technologies.”

The compromise agreement thrashed out just hours before the world leaders descended on Rio contains no concrete pledges of funds to help developing countries and the wording of the final text suggests that detailed treatment of thorny issues like IPR in the context of green technologies were being referred to other international agencies. In the compromise agreement, governments agreed to “explore modalities in the relevant fora for enhanced access to environmentally sound technologies by developing countries.”

A senior UN official said that the US and other developed countries had argued that technology is a private good and has to be purchased on full price, and that Rio+ 20 was not the forum for taking up matters related to intellectual property. Instead, such issues need to be thrashed out in fora such as World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).

Activists from the developing world who have been following the negotiations on this prickly issue since the start say the language in the final document falls far short of what developing countries wanted. But they lauded the G77 + China for holding their ground and ensuring that references to IPRs had not been completely taken off the table.

That the battle to link IP rights with green technologies will go on is clear from some of the arguments forwarded by developing country analysts who point out that the current IP regime has flexibilities which could facilitate wider diffusion of environmentally sound technologies from industrialised to developing nations.

A new research paper on “Climate Change, Technology and Intellectual Property Rights: Context and Recent Negotiations [2]” from the Geneva-based South Centre said: “Under the TRIPS agreement, there is considerable flexibility provided to WTO Member States on the grounds for issuing compulsory licenses.” TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.

“These grounds are not restricted, as confirmed by the WTO Ministerial Declaration on TRIPS and Public Health (WTO, 2001),” the South Centre said. “For example, and contrary to a quite widespread notion, it is not necessary for a government to declare its country is in a state of health emergency in order for it to issue a compulsory license for a pharmaceutical drug. Certainly the fact that a country requires a product or technology in order to meet its objectives or responsibilities to mitigate climate change or to adapt to climate change is a valid ground for compulsory licensing.”

The report goes on to say that in developed countries, there have been many compulsory licences granted by governments to facilitate cheaper products and technology in the industrial sector.

The South Centre report notes that the relaxation of the TRIPS rules in the case of climate-related technologies had been proposed by developing countries in the UNFCCC (the UN Framework Convention on Climate Change, an international environmental treaty produced at the First Earth Summit held in Rio de Janeiro in 1992).

Such arguments are being vigorously contested by companies in industrialised countries. In climate-related technologies, the developed countries have an overwhelming share of patents worldwide, and corporations in these countries have been voicing fears of a risk to the existing intellectual property regime which they argue is intrinsic to innovation.

That the attempt to link IPRs and green technologies had many in the industrialised world´s business community worried is evident from the strongly-worded letter [3] by Richard Phillips, president of the Washington DC-headquartered Intellectual Property Owners Association, to various functionaries of the US government.

On 19 June, just before world leaders arrived in Rio for the high-level segment of the sustainability summit, Phillips wrote to the US secretaries of State and Energy and the US Trade Representative urging that intellectual property rights be kept off the Rio+20 conference agenda.

The IPO letter made it clear that it saw the Rio+20 conference as a forum “with the potential of undermining IPR in the name of sustainable development and climate change. “ The letter alleged that in the negotiations towards a declaration, some countries had been suggesting proposals that would conflict with the current system of IPR protection.

“As representatives of industry, we have serious concerns regarding any involuntary technology transfer obligations introduced through the Rio+20 Conference that would involve divulging proprietary technology of know-how, including technology or know-how that rises to the level of trade secret status,” the IPO stated. “Any references to technology transfer should be clearly qualified and conditioned to include only voluntary transfer of IP on mutually agreed terms,” the letter urged.

Interestingly, the final document that came out of Rio+20 retained references to the flexibilities for the protection of public health, in particular, promotion of access to medicines for all and encouragement of the provision of assistance to developing countries in this regard while remaining silent on use of similar flexibilities for diffusion of green technologies.

“Flexibilities appear in relation to health, but not in connection with environmentally sound technologies,” Martin Khor, executive director of the South Centre told Intellectual Property Watch via email. “In a draft before the final one, there was a reference to flexibilities in the general section on technology as part of the chapter on Means of Implementation. This would have meant flexibilities in the IP regime in relation to environmentally sound technologies.”

“However,” he said, “on the insistence of US and other developed countries, it could not remain in the final document.” This could not be verified with representatives of the US government or other developed countries at the time of writing.

Why is the issue of flexibilities in the existing IPR regime regarding green technologies such a bone of contention when it is accepted in the arena of public health? There are several theories.

“The flexibility related to health has been already accepted in the WTO Declaration on the TRIPS Agreement and Public Health [4] of 2001 and subsequent decisions in TRIPS Council (2005),” Meena Raman, legal advisor for the Penang-based Third World Network (TWN), told Intellectual Property Watch. “However, there has not been any mention of affirmation of TRIPS flexibilities with respect of environmentally sound technology. This could be one reason.”

The November 2001 Doha Declaration on the TRIPS Agreement and Public Health, adopted by the WTO Ministerial Conference of 2001 in Doha, reaffirmed the flexibility of TRIPS member states in circumventing patent rights for better access to essential medicines

Some activists allege that during the negotiations, the United States had also wanted the paragraph on IP and health, as well as flexibilities within the current IP system, deleted from the summit outcome document. But the final version retains these. The US spokesperson could not comment by press time.

At Riocentro, where the sustainability meet was held, government delegates from both the industrialised nations and the G77 + China were reluctant to speak on the issue. An Indian delegate would only say that the outcome document reflected the final consensus position of all member states. No one in the US delegation was available to comment on the topic.

Separately, US Secretary of State Hillary Clinton, in Rio, announced a new US initiative to leverage private financing for clean energy projects in Africa. The partnership, which includes the US State Department, the Overseas Private Investment Corp., and the US Trade and Development Agency, will provide $20 million in grants to business owners in Africa to help leverage hundreds of millions in private financing, according to sources.

Meanwhile, in a side event on the last day of Rio+20, US Environmental Protection Agency Administrator Lisa Jackson presented the latest actions of the Climate and Clear Air Coalition to Reduce Short-Lived Climate Pollutants. The coalition’s founding partners include Bangladesh, Canada, Ghana, Mexico and Sweden.

At the side event, Sherry Ayitey, Ghana`s minister for Environment, Science and Technology told Intellectual Property Watch that her country is faced with serious climate-related challenges like desertification and is looking for practical solutions. Ghana, a member of the coalition, is going to launch West Africa`s research centre on climate change later this year.

“We will invite experts from other parts of the world to come to Ghana and train our scientists,” she said. “Then, we hope to come up with indigenous solutions to the problems we face. That is one way of getting around the problem over patents.”

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2 Comments To "Rio+20 Climate Talks Finish With Little IP; Flexibilities Under Fire"

#1 Pingback By Despatches from Brazil « Patralekha Chatterjee's Blog On 21/07/2012 @ 6:38 pm

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#2 Pingback By US Industry IP Campaign Aims To Dispel Misconceptions About Commercial Interests | Intellectual Property Watch On 31/07/2012 @ 2:13 pm

[…] suggestions that the patent system be suspended to provide easier access to green technology (IPW, Patent Policy, 25 June 2012), he said, and negative views about IP “have even led to the establishment of a political […]