IP Rights In A Quiet Tug-Of-War At UN Climate Change Negotiations

BARCELONA – At this week’s global climate talks, efforts are being made to trim references to intellectual property rights in relation to technology transfer from the body of a non-paper and relegate much of it to an appendix. But developing countries have asked that those measures be brought back into the main text. An updated non-paper should be issued on Friday.

Negotiations, meanwhile, are buzzing inside the plenary room, side rooms, and informally in the corridors, and issues of intellectual property rights, still not being addressed formally, are stirring political discussions as they might be spreading outside the subject of technology transfer to which they have been confined.

The United Nations Framework Convention on Climate Change is meeting in Barcelona from 2-6 November.

The position of the Group of 77 plus China is fixed on saying that IP is important and represents a barrier to technology transfer, some delegates said. For developed countries, IP rights are not seen as preventing technology transfer but rather providing incentives for innovation.

European countries, along with the United States and most other developed countries consider that IP rights issues do not have a place in the climate change negotiations, according to developed country delegates. IP rights should be discussed in global institutions that already have a mandate and an expertise on the subject, such as the WTO.

Non-paper 36, issued on 3 November, significantly reduced the language about IP rights in the body of the main text, relegating the measures regarding IP rights in an appendix. According to the EU delegates, the US said they would like to delete the paragraph altogether from the text.

In the main text of non-paper 36, the paragraph relating to IP says: “The [technology body] is requested to identify appropriate actions to address barriers to technology development and transfer encountered by developing countries parties, including those related to intellectual property rights, to enable action on mitigation and adaptation.”

Measures regarding IP rights appear under an Appendix which has a footnote saying that “Based on the precedent of Decision 22/CP.7, an appendix could be used to locate elements of the text that cannot be agreed or are of a detailed nature that will be considered by parties after Copenhagen. This approach prevents the loss of text.”

Developing countries consider that could mean IP issues could be pushed out of the Copenhagen talks, for future consideration, a source said. They disagree with the process of redrafting the preceding version of the text, non-paper 29. And they consider the redrafting to be lacking transparency and are now trying to have the measures concerning IP rights put back into the main text to be discussed, and out of the appendix, the source said.

On Tuesday, Bolivia and India said that they would not accept non-paper 36 as a negotiating text and they would work with the contact group to draft another text, the source said. Yesterday, the source added, Bolivia, Bangladesh and India submitted text language towards a new version of the non-paper to be released on 6 November, including IP rights.

IP Rights Possible in Other Discussions

Six contact groups are working on the long-term cooperative action under the convention and are dealing with the following issues: Shared vision, mitigation, adaptation, technology, and finance. According to one source, IP rights could potentially be included in the mitigation group under sectoral approaches, in the technology group, which they already are, and in the finance group.

Although the most obvious place to discuss IP rights is the text on technology transfer, some developing countries would like to introduce some language on IP in the text of the “Various approaches to enhance the cost-effectiveness of, and to promote, mitigation actions.” This non-paper numbered 30 includes discussion about market-based and non-market-based approaches. Word circulated that there will be a proposal that the text could be updated, with some IP rights language.

Venezuela and other G77 countries are talking about four different points to be added to non-paper 30: consumption patterns, IP rights, education and enhancing domestic capacity and technology, a source told Intellectual Property Watch. The non-paper is allegedly minimalist in its approach of market and non market-based approaches.

The non-papers are not official documents, but they are really negotiating texts, according to one source.

The IP discussions have gone to a political level, according to Carlos Mazal from the World Intellectual Property Organization. Very few country delegations in Barcelona include IP delegates, he said, adding that in the climate change arena actors were not historically IP specialists. IP technical awareness is something WIPO and the WTO are giving advice on in Barcelona, he said.

WIPO organised side-events during the Poznan (Poland) and Bonn climate change discussions in past years. A side event should also be organised in Copenhagen, Mazal said “An informed and judicious debate on IP issues” should be encouraged, he said.

In order to help participants, WIPO has created a link from the United Nations Framework Convention on Climate Change website (TTclear) to the WIPO patent database Patentscope.

Participants at this week’s talks were greeted Thursday morning by foul-smelling fog, lightning, and rain in a swirl of dead leaves as extreme weather was staged by Greenpeace on the square outside of the convention centre. The environmental activist group was calling for a fair, ambitious and binding climate deal and for some sizeable political will, like the involvement of the White House in the process.