Informal UN Climate Talks Indicate Continued Divergence On IP Issues

With 15 scheduled negotiating days left before a meeting in Copenhagen meant to set the global sustainability agenda for the next several years, the head of the United Nations agency tasked with coordinating the global effort to fight climate change has issued an urgent call for more speed toward convergence on all parts of the upcoming climate change agreement, especially on IP-related text – lest the entire thing fall through.

Opinions on intellectual property issues, like many other parts of the agreement, remain divided, according to documents from the informal meeting. Delegates will need to come up with compromise text soon if the agreement is going to go through as planned.

“Serious climate change is equal to ‘game over,’” UN Framework Convention on Climate Change Executive Secretary Yvo de Boer told a press conference closing the August informal intersessional consultations. To say there are other things that need to be focussed on is “the way to a global disaster,” he said after the meetings intended to help spur the process forward. If negotiations “continue at this rate, we’re not going to make it.”

Particular speed is needed in the areas of “adaptation technology and building skills in developing nations,” he added, according to a video of the press conference, shown to the right.

It is under this category – technology and capacity building- that intellectual property rights appear in the negotiating text of the ad-hoc working group on long-term cooperative action (AWG-LCA).

The AWG-LCA is one of two working groups aiming towards an updated global framework for combating climate change, an agreement on which is meant to be reached during a meeting of all parties to UNFCCC on 7-18 December in Copenhagen, Denmark. The AWG-LCA focuses on international action; the other working group focuses on commitments specifically for so-called “Annex 1” parties – developed countries – to the previous UN climate agreement, the Kyoto Protocol.

At the informal intersessional meeting from 10-14 August in Bonn, members of the working group did find areas in which they felt the current text on intellectual property could be consolidated, but they are primarily changes to neaten the text by uniting similar concepts, according to a record of suggested areas of consolidation found during the informal meeting, available here [pdf]. Two alternative paragraphs that both talk about patent exemptions are consolidated into one paragraph, for example; and many paragraphs relating to patent pools – or collections of intellectual property assets for easier licensing – are merged.

The IP section still remains heavily bracketed – that is, not yet having found consensus – and key differences in perspectives on IP policy are still reflected by the four optional texts in the negotiating document.

The options differ as to whether technology transfer and capacity building can best be aided through the IP regime (with aid to least developed countries to cover the cost of new technology); whether IP poses a barrier and if environmentally critical or publicly funded innovations should be exempt from patents, or whether flexibilities should be employed; or whether a committee is needed to do further study as to when IP is a barrier to research and deployment of environmental technology.

The current negotiating text of the AWG-LCA is available here [pdf], with options for intellectual property regulations available on pages 184-186 in paragraphs 187-189.

A summary record [pdf] of the zeitgeist of the informal discussions on development and transfer of technology makes it even more clear that there is still work to be done to reach agreement on IP.

While there is convergence over the need to protect incentives for innovation, divergence remains on “enhanced protection of intellectual property to enhance innovation,” as well as on what flexibilities to IP rights should be used to address climate change.

These flexibilities include: compulsory licensing (government licensing of a technology before its patent is expired), patent pooling; preferential or differential pricing (for licences or technologies) or other forms of shared licensing.

Other areas of divergence in IP flexibility are: suggested exemptions from patent rights for environmentally sound technologies, for vulnerable or least developed countries, and suggestions for limiting the length of patent protection. Opinions on reviews of IP regulations and proposals for a declaration on IP and environmental technology also diverge.

There will be two more formal negotiating meetings of the two working groups before the Copenhagen gathering. The next will be from 28 September to 9 October in Bangkok. Following that is a 2-6 November meeting in Barcelona.