Panel Calls For An Ethical Framework For IP And Climate Change

BANGKOK – Normal negotiation strategy is unlikely to result in an impact on climate change, since the most important stakeholders in fighting it – not yet born – have no seat at the negotiating tables, said a panel last week in Bangkok. An ethical approach is a better way to achieve results, speakers said, and an ethical take on intellectual property rights and alternative forms of innovation may have a place in new climate-friendly economic models.

The changes needed will be extraordinary: In order to meet United Nations Framework Convention on Climate Change targets for reductions in emissions by 2015, there will need to be a tenfold increase in carbon productivity, said economist Nitin Desai, a former senior UN official, who also chaired the panel.

This is “comparable to the increase in labour productivity throughout the entire industrial revolution,” he added.

“This is an aspect [of fighting climate change] that we are not facing up to,” said Desai. The “industrial revolution wasn’t just about technology: it was a whole new world. It’s the scale … that is not being adequately recognised.”

In particular, basic ethical principles of responsibility are useful in looking at ways to tackle the climate issue, said Desai. The collection of speakers was hosted by the Tata Energy Research Institute (TERI), a non-governmental agency which looks at matters of energy, environment, and development, and took place on 8 October.

Ethical questions on climate change include not just a fair allocation of responsibilities, obligations and costs in fighting it, said Manish Shivastava, a research associate at TERI who is working on a paper entitled “Technology, Ethics, and IPR: The Dilemma in Climate Change Governance.” They also include a fair allocation to benefits, to the right to development and to various resources, and an elimination of differences in exposure to consequences and unequal protection.

Intellectual Property, Ethics, and Climate Change

As technology is a key factor in combating climate change, ethical issues raised include who will commit what kinds of support for the development and dissemination of technology – generally, developed countries are seen as responsible for financial support, and developing countries as responsible for building favourable policy environments (tariff structures or foreign investment policies) for technology to come in, Shivastava said. And there is general agreement that IP rights encourage innovations and private investment in research and development, said Shivastava.

“But as a side effect, they add cost to users,” he said, both directly (by increasing prices) and indirectly (by increasing transaction costs for acquiring a needed bundle of technologies, or gaining ability to use a technology if a firm is unwilling to licence).

But IP in environmental technology may not look the same as it has in previous debates, such as over pharmaceuticals, in particular as related to HIV/AIDS medications in Africa.

“Most people think about IP and the high cost, taking the example of pharma,” but this may be a different situation, said another speaker who declined to be identified. In pharmaceuticals, the “cost of R&D is so high that IP can constitute something like 90 percent of the price of a technology.” But in green energy the IP is likely not to constitute more than about 10 percent of the product, the speaker asserted.

“There is a clear difference with pharmaceuticals, where IP is linked to a product” than “in the case of energy or environmental technology” which is “much more complex [and necessitates looking] at IP as a part of overall cost, and how to manage cost to make deployment happen,” said Anand Patwardhan, a professor at the Indian Institute
of Technology in Mumbai, with a background in environment, technology and public policy.

If there is a paradigm-shifting technology where the problem is IP rights, then there is already the option of compulsory licensing in the World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) agreement, the speaker said, which applies to any product and is not limited to pharmaceuticals.

Open Sourcing for the Environment

It is “definitely true that IPR is a social contract that balances public and private interest,” said Patwardhan, adding that “to the extent that there’s a public interest in more rapid development, you might want to think less about compulsory licences but more about how to encourage development that’s more open.” In open source development, “the ability to work collaboratively is enhanced” and “actually speeds up the technology cycle and makes it more diverse.”

Desai agreed. “With climate, we’re talking about process, not product,” he said, referring to the need for an economic paradigm shirt. “So we need a structure … like a transparency requirement.” This fits, he said, into the open source model of revealing source code.

Other solutions suggested by Shivastava included waivers on royalties for publicly funded technology, patent pools, or patent commons where rights holders pledge conditional waivers on their royalties.

Several participants also mentioned how critical it is that financing for both development and diffusion be provided.

Also contributing as research fellows of TERI, though not on IP issues, were Nitu Goel, who wrote on ethics in funding for adaptation to climate change, and Neha Pahuja, who spoke about measurable, reportable and verifiable goals.