[A2k] North-South divide over IPRs and climate technologies

[Sangeeta]

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Please find below discussion on intellectual property that took place in th=
e
context of the
climate change negotiations under the UN Framework Convention on Climate
Change.

The 2 week negotiations took place in Bonn and ends today.

Regards
Sangeeta Shashikant
Third World Network

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Wide North-South divide over IPRs and climate technologies
TWN IP INFO

Bonn, June 9 (Meena Raman) - Developing and developed countries were clearl=
y
divided over the treatment of intellectual property rights (IPRs) over
climate-friendly technologies at negotiations under the United Nations
Framework Convention on Climate Change.

The informal plenary under the Ad-hoc Working Group on Long-term Cooperativ=
e
Action (AWGLCA) on 6 June began its first reading of the negotiating text o=
n
the issue of technology and capacity building.

The issue of IPRs in relation to climate-friendly technologies was clearly
controversial in the negotiations. While several developing countries
including Bolivia, the Philippines and Indonesia called for the exclusion o=
f
patents over such technologies, developed countries such as Japan, Canada,
Australia, Switzerland and the United States insisted on strong IPR regimes=
.
They even opposed the use of compulsory licensing for patented technologies=
,
which is allowed for under the WTO Agreement on Trade-Related Intellectual
Property Rights (TRIPs).

Developed countries maintained that a strong IPR regime was necessary to
ensure innovation and the development of technology. The developing
countries on the other hand, argued that there was a need for patent
exclusion on climate technologies, given the need for a global and systemic
response to address the global challenge of climate change. They said that
the existing flexibilities to overcome patent barriers under TRIPs was an
inadequate remedy, as these required a case by case national response that
was still fraught with obstacles and difficulties in using the
flexibilities.

Apart from the IPR issue, the United States and Australia also questioned
the need for new institutional arrangements as proposed by the G77 and Chin=
a
for a technology mechanism to enhance technology development, diffusion and
transfer. Developed countries stressed the need for the establishment of
enabling environments and national policies that would enhance investments
in climate technologies in developing countries.

Developing countries on the other hand emphasized the legally binding
commitment of developed country Parties under the Convention to enable
technology transfer, emphasizing the role of developed country governments
in this regard. The private sector played a complementary role but cannot b=
e
a substitute for public sector actions.

Developed countries also stressed the need to link technology needs of
developing countries to low-carbon development strategies.

Ghana speaking for G77 and China, said that in relation to measures to
address intellectual property rights, the Group had difficulty with option =
1
under paragraph 187 in the text that states that technology development,
diffusion and transfer be promoted by operating the intellectual property
regime in a manner that encourages the development and transfer of
climate-friendly technologies. It indicated that the Group will have a new
formulation of the text that would reflect their interests.

It said that the entire structure of the negotiating text had to be modifie=
d
to include the Group's proposal for a technology proposal under the
Convention. The role of the private sector in technology research,
development and transfer has to be recognised but it cannot be a substitute
for actions needed from developed countries. Financing for technology
transfer and capacity building must be new, additional, stable and
predictable. There is a need to streamline nationally appropriate mitigatio=
n
actions, technology road maps, action plans and needs assessments to ensure
that there is no multiplication of documents to be prepared by developing
countries before there is cooperation on technology.

In reference to the term =B3framework for technology=B2 in the negotiating =
text,
the Group wanted to know what it meant. The Group had difficulties as
regards paragraph 180 (f) of the text which reads as follows - =B3{Stimulat=
e
the formation and development of national and international innovation
systems and markets for technologies for mitigation and adaptation, creatin=
g
favourable investment and enabling environments, and engaging the private
sector;}

It also asked for the deletion of proposals that call for voluntary
technology oriented agreements within and outside the Convention. On
institutional arrangements, the Group would like to see clarity in the
proposals to ensure consistency with its technology mechanism proposal.

Bolivia said that in relation to IPRs, there was a need for measures to
allow for the mandatory exclusion of technologies for adaptation and
mitigation. Where relevant, there was a need for the revocation of existing
patents linked to climate change. There was also a need for immediate
measures that can facilitate patent pools and know-how. Changes to the
international IPR regime was also consistent with the payment of the climat=
e
debt for adaptation that is owed by developed countries to developing
countries. Patents promote monopolies and this even goes against the free
market thinking. The current flexibilities under the TRIPs regime to
overcome patents are insufficient to face the global challenge of climate
change. The flexibilities have to be on a case by case basis which slows
down technology deployment. Hence, there was a need to rethink the whole IP=
R
architecture.

Indonesia also noted that the TRIPs Agreement, while providing flexibilitie=
s
to overcome patents, does not provide for a systemic and comprehensive
solution to address the climate challenge. A case by case response at the
national level was also fraught with the lack of capacities and various
obstacles and is therefore not a sufficient and effective remedy to deal
with a global emergency like climate change. Hence, there was a need for a
systemic response in dealing with the exisiting IPR regime.

Philippines also called for patent exclusion in relation to climate
technologies. There was also a need to increase the flexibilities under the
TRIPs Agreement.

Ecuador on behalf of several Latin American countries said that measures to
address IPRs was important, such as complusory licensing, the promotion of
innovation through alternative mechanisms, access to publicly funded
technologies, the creation of patent pools, free access to technology
resources and the provision of price incentives and other forms of
incentives.

Nicaragua, speaking for several Central American countries said that it
supported measures for the removal of barriers to technology transfer such
as IPRs.

Turkey also said called for a review of IPRs and for flexibilities in
addressing IPRs.

India said that there must be provisions in the text to accelerate
technology diffusion and transfer to enable the early lock-in of climate
technologies. The text calls for a number of documents and technology
assessments to be done for technology cooperation but these cannot be
alternatives to actions. The technology framework must enable support for
short-term, medium-term and longer-term technologies. There was a need for =
a
hard look at IPRs to ensure that technology transfer is accelerated
especially in areas where there were cartels.

China stressed that in relation to climate change, Parties are not talking
about commercial issues but about a global public good to combat climate
change. There was a need for public-private partnerships over technologies.
There was need to develop a logical framework to reach a solution, linking
technology, finance and the issue of IPRs. It wants IPRs to motivate
innovation but where it is unfair and the IPR system damages innovation
through unfair monopolies, there needs to be a solution. There was a need t=
o
have an innovative development of the IPR system to address climate change.

Brazil said that technology transfer is a commitment by developed country
Parties to developing countries. There must be innovative approaches to
remove barriers to technology transfer. There should be no conditionalities
that create new barriers to technology transfer.

South Africa speaking for the Africa Group said that it would like to see
all the stages of the technology cycle to be linked to finance, noting that
the various stages would require financing and capacity building
interventions. It said that there was a lot of emphasis on private sector
funding for technology and stressed that public sector financing was
essential. Technology action plans cannot be used as a foundation for
funding as it could be impose conditionalities.

Belize for the Alliance of Small Island States (AOSIS) said that in relatio=
n
to technology roadmaps, the needs of the Small Island States and least
developed countries (LDCs) must be addressed.

Uganda for the LDCs said that the institutional framework should be small
and effective, with a technology committee with executive powers, drawn wit=
h
participation from various regions.

Australia said that options in the text for specific measures to be
established to remove barriers to development and transfer of technologies
arising from IPRs including through compulsory licensing for specific
patented technologies; the pooling and sharing of publicly funded
technologies and the exemption from patent protection for LDCs were
inconsistent with the TRIPs Agreement. It would be detrimental to technolog=
y
development without strong incentives as according to the World Intellectua=
l
Property Organisation (WIPO), a strong and effective IPR regime would
facilitate technology innovation.

It also said that in relation to technology cooperation, there was a need t=
o
include all Parties' common responsibilities. There was a catalytic and
facilitative role of the technology framework in relation to a wider range
of activities external to the UNFCCC. The current text focuses on new
institutional arrangements. There was a need for cohesive actions first and
then the appropriate institutions. The private sector should be enhanced to
play a role. It was important for technology actions plans to be linked to
technology roadmaps. There was a need to link technology needs assessments
to low carbon strategies.

Japan also expressed concerns over the proposed measures to address IPRs in
the text. The example of IPRs over medicines in health is completely
different from environment and energy technologies. The cost of IPRs in
environment and energy technologies is much lower than that of medicines.
While technologies in medicines are limited, that is not the case for
environment and energy related technlogies. According to a special report o=
f
the IPCC, the main barrier to technology transfer is the lack of data or
information and not IPRs. A report from D-G Trade of Europe also concluded
the same that IPRs are not a barrier for climate technologies. IPRs are a
source of innovation and its driving force. Thus, IPR protection is
essential. Compulsory licensing and technology-sharing do not have a role i=
n
technology diffusion. There was a need for a more effective solution.

Canada said that strong IPR protection enables investments and is an
incentive for the private sector. It had strong and fundamental concerns
about options to change the IPR regime and cannot support such proposals.

The US also had concerns about the treatment of IPRs, which were an
essential building block for technology innovation. Empirical evidence
showed that robust IPR regimes promote technology development and
innovation.

It also suggested that a new section be introduced in the text for common
and cooperative actions. It would also like to see the linking of
technologies to low carbon strategies. It was not convinced that new
institutional arrangements would facilitate technology transfer.
Technologies will be adopted when Parties have national policies that could
enhance internal and external investment in technologies.

Switzerland said that an enabling environment was a prerequisite for
technology transfer. There was need to have an environment that protects
private property and IPRs. It had strong reservations over options in the
text that call for compulsory licensing for patented technologies. IPR
protection is an incentive for the private sector.

The European Union said that it was important to see the link between
technologies and the concept of low carbon development strategies. Low
carbon development strategies were a vehicle to identify and support
technology needs and capacity building needs. The Copenhagen outcome can
catalyse and facilitate technology research, development, diffusion and
deployment.









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