New Text Shows Delegates Must Overcome Conceptual Differences On IP, Climate

BANGKOK – Delegates gathered in Thailand to try and pull together a slow-moving UN negotiation on a plan to fight climate change have yet to bridge fundamental conceptual differences on key issues, including intellectual property. The vast majority of consensus found so far at the two-week informal gathering has been textual rather than political, said several participants.

Substantive discussion “remains to be launched on many issues,” Anders Turesson, chief negotiator on climate for Sweden, which currently holds the European Union presidency, told an EU press conference.

There has been “improvement on the quantity of the text, but not the quality,” said Wael Hmaidan, executive director of the activist network IndyACT, adding that most concessions had come from the developing world.

Artur Runge-Metzger, head of climate strategy and international negotiation at the European Commission said at the same press conference that there had been some progress in the areas of technology development and transfer, capacity building, and adaptation, but later in response to a question from Intellectual Property Watch said that IP rights – which are contained in the technology transfer part of the agreement – have been “for the past 20 years one of the most difficult areas” of work.

A delegate who is tracking the technology transfer issue separately told Intellectual Property Watch that IP “might be the hardest part to agree on.” Progress had been made on the IP part of the agreement text-wise, the delegate said, but “two different concepts” of IP remain: one that says IP should be respected, and another that says technologies should be shared.

The UN Framework Convention on Climate Change is meeting against the backdrop of a series of natural disasters in neighbouring countries: tropical storm Ketsana in the Philippines as well as Vietnam, Cambodia and the Lao People’s Democratic Republic, a tsunami in Samoa, a 7.6 magnitude earthquake in Indonesia, and a second typhoon, Parma, in the northern part of the Philippines.

The meeting runs until Friday, 9 October.

The next meeting of the UNFCCC is 2-6 November in Barcelona, which will be the last chance for parties to the framework to hammer out differences before they go to Copenhagen in December. The Copenhagen meeting is the deadline by which states are meant to have completed a new framework for handling the global threat posed by catastrophic climate change.

New IP Text Consolidates But Doesn’t Decide

Going into the Bangkok meeting, negotiators at the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) – the body which is handling the negotiating text on technology transfers – had an extensive text on intellectual property to work with.

But a non-paper released 2 October shows there has been considerable consolidation of the text since the previous negotiating text dated 15 September (and available here [pdf]). The four heavily bracketed (that is, not yet having been agreed to) and lengthy options on IP contained in the 15 September text have been reduced to four mostly bracket-free and shorter options in the non-paper.

The 2 October text in its entirety can be read here. The section on intellectual property is on page seven.

In the first option, promoting technology diffusion and transfer “by operating the intellectual property regime” has been modified to “by operating the intellectual property regime in a balanced manner.” Also modified is the provision for financing to aid developing countries. The 15 September text read “buy down the cost of technologies”; the updated text says “financial support to buy down the full or partial cost of technologies… should be provided by financial mechanism under the Convention.”

The words “compulsory licensing” (bracketed in the 15 September text) have been removed from a sentence of flexibilities.

The second option has been toned down, from “specific and urgent measures… to remove barriers to development and transfer of technologies… arising from the intellectual property rights (IPR) protection” to “any international agreement on intellectual property [shall][should] not be interpreted or implemented in a manner that limits or prevents any Party from taking any measures to address” technology development and transfer. It then lists “specific and urgent measures.”

Option 3 – proposed least developed countries or vulnerable countries be exempt from IP on climate technology – remains mostly the same, with more details on what kinds of technology apples.

Option 4 – proposed the creation of a committee to advise on IP matters – is unchanged, except that text on the committee’s duties has been excised.

US: No “Compulsory Licenses”

If and how delegates will be able to bridge the conceptual chasm between differing views on intellectual property is not yet clear.

The United States “very forcefully” said in Bonn (at the last UNFCCC meeting) that it would not sign on to a Copenhagen agreement with compulsory licenses, Jake Schmidt, the international climate policy director of the National Resources Defense Council told Intellectual Property Watch. They have now softened somewhat, he added, and may have some flexibility, but a text saying “we’ll give away free IPRs” is “probably a non-starter.” The US “will have to tread carefully” to balance the need to reach international agreement with the need to be able to take home that agreement to business interests at home.

Climate bills before the US Congress echo the concern about IP. Language on financing for clean energy export in the House of Representatives climate change bill, said Schmidt, stipulates that “nothing about this money can undermine the TRIPS [Trade-Related Aspects of Intellectual Property Rights] agreement.” Within the Senate, a similar bill is still coming from the Foreign Relations committee, but Schmidt said it is likely to contain similar language.

Runge-Metzger told Intellectual Property Watch that the EU thinks “IPR are not really a barrier to technology transfer” though it can be a barrier to technology development “if not strong enough.” He added that people often confuse IP and environmental technology with IP and pharmaceuticals. A patent may be only 2-3 percent of total price in environmental technology, he said, unlike pharmaceuticals.

He then used the example of a coal plant where he said there may be thousands of patents from thousands of companies. Regulation is the issue, he added, not IP.

Ambassador Di-Aping Lumumba of Sudan at a later press conference run by the intergovernmental agency the South Centre disagreed. Developed countries are, he said, trying to kill the Kyoto protocol (the prior UNFCCC agreement, which mandated a list of developed countries drastically curb their emissions), that they are focussing too much on market solutions “despite the fact that every single economist and scientist has said that climate change is simply a market failure.” They are not transferring technology or the financing necessary, he said, and seem to have a “fear of public goods.”