IP Rights In Starting Blocks For Copenhagen, But Issue Still Uncertain

BARCELONA – Weeklong climate negotiations came to an end today, and despite the assurance from most delegations that everything is still possible in the Copenhagen climate change conference in December, many issues remain in doubt. Among them are finance, emissions reduction, technology transfer, and the nature of the agreement to be built in Copenhagen.

The United Nations Framework Convention on Climate Change (UNFCCC) met from 2-6 November in Barcelona to advance a draft text for the final meeting in Copenhagen from 7-18 December. Negotiations have been carried out in smaller groups called contact groups.

Intellectual property rights were not discussed today in Barcelona, according to sources, but the issue is back in the game in technology transfer and appeared in a new version of a “non-paper” on mitigation actions. The non-papers from Barcelona on those issues will serve as inputs for negotiations in Copenhagen and the debate promises to be heated considering the dualistic positions of some of the players.

A new non-paper from the contact group on enhanced action on development and transfer of technology was issued this afternoon superseding the last one from Tuesday, numbered 36, which was contested by developing countries, like India, Bolivia, Bangladesh, and the Group of 77 plus China over IP issues being taken out of the main text (IPW, Environment, 6 November 2009).

The new non-paper, numbered 47, reinstalled the measures referring to intellectual property rights inside the main text. In non-paper 36, those measures had been relegated to an appendix with a footnote mentioning that the issues contained in the appendix could be discussed at a later date than Copenhagen, to the discontent of developing countries.

Yesterday, India, Bolivia and Bangladesh submitted some language to amend non-paper 36 so that the text that had been moved to the appendix would be brought back into the main body of the draft text, according to Ajay Mathur, director general of the Indian Bureau of Energy Efficiency. The new version was published this afternoon.

The G77 plus China also submitted some text. A paragraph 9bis has been added in paper 47, including specific measures to remove barriers to development and transfer of technologies, and a paragraph 10bis, 10bis1, 10bis2, and 10bis3, retrieving language from the paper with which the talks in Barcelona started, namely non-paper 29.

Non-paper 47 here [pdf]

Non-paper 36 here [pdf]

Kunihiko Shimada, chair of the contact group on enhanced action on development and transfer of technology and policy coordinator for the ministry of the environment of Japan, told Intellectual Property Watch that IP rights are important for everyone in different contexts. Developed countries need solid protection of IP rights as innovation incentives and developing countries see IP rights as a key barrier to technology transfer and are asking from the developed countries more flexibilities in IP rights.

“The UNFCCC technology negotiating group should seek guidance from the IP rights expert community, such at the World Intellectual Property Organization or the World Trade Organization,” he said. Both groups were present in Barcelona.

Several delegates from developing and developed countries said that non-paper 47 was agreed as an input for negotiations in Copenhagen, but Shimada cautioned that the discussion would not be easy.

IP Rights Get New Mention in Contact Group on Mitigation

After a push from developing countries yesterday, a mention about IP rights was introduced in a new non-paper, numbered 42 and superseding non-paper 30, on various approaches to enhance the cost-effectiveness of, and to promote, mitigation actions. Non-paper 42 here [pdf].

In the non-market-based approaches section, a paragraph called “removing barriers associated with intellectual property rights” describes how parties “should ensure that IP rights and agreements shall not be interpreted or implemented in a manner that limits or prevents any party from taking any measures to promote mitigation of climate change.”

The language in non-paper 42 recalls the one used in non-paper 47. In both papers, IP rights will be discussed in Copenhagen as they were not officially discussed in Barcelona.

A European Union negotiator told Intellectual Property Watch that no reference to IP rights had been made today in relation to technology transfer but that IP rights were a prerequisite for innovation. The Copenhagen convention could not interpret other instruments already having provisions on the subject, as that would be in contradiction to the Vienna Convention on the Law of Treaties.

Parties offered closing comments on the outcome of the Barcelona talks. Links to press conferences are here.

India said in a press conference that it was not ready to settle for a weak agreement in Copenhagen in reference to the fear of developing countries that developed countries will try to avoid the agreement to be legally binding, preferring a politically binding one.

A positive outcome is still possible at Copenhagen said the Indian delegate. “We are not already giving up,” he said. The progress is disappointing but the negotiations are complex and involve important economic interests for countries, he said.

The Alliance of Small Islands States called for a legally binding outcome in Copenhagen and said the main ingredient was political will. “We do not have the option of delay,” the representative said.

For the World Wildlife Fund, Barcelona was a “lost and found session” where the developed countries lost their ambitions and where Africa found its muscles, referring to a boycott by the African group countries at the beginning of the week on the Kyoto Protocol.

The G77 plus China said that little progress had been made and that the major problem lies with the required level of emissions reductions to which developed countries did not want to pledge. The representative said in a press briefing that the group needed a fair commitment on technology, including addressing the issues of IP rights.

During the month leading up to the Copenhagen convention, several meetings are expected to be organised, providing fora to discuss further, like the Greenland dialogue organised by Denmark, which will be a ministerial-level meeting. The G77 plus China said they disapprove of exclusive meetings, according to a source.

The UNFCCC is still hopeful that Copenhagen will yield a strong climate deal, calling for a combination of commitment and compromise from parties to achieve this goal, Yvo de Boer, executive secretary of the UNFCCC, said during a press conference.

The issue of climate change has never been so high on the agenda of the leaders of the world, de Boer said, and the Copenhagen discussions must capitalise on this. If a treaty is to be finalised, the language for this treaty should be negotiated in Copenhagen. “After Copenhagen, talking actions must turn into taking actions,” he said.

The UNFCCC expects about 40 head of states in Copenhagen, including French President Nicolas Sarkozy and German Chancellor Angela Merkel, de Boer said. Some countries had expressed concerned about the political level of country representatives, calling for higher involvement.