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TWN Info Service on Climate Change (Feb14/01)
28 February 2014
Third World Network

WTO discusses intellectual property and green technologies transfer

Geneva, 28 Feb (Alexandra Bhattacharya) – Developing countries are pressing for the World Trade Organization to deal with the role of intellectual property in transferring technology to address climate change.

The WTO’s Trade-Related Aspects of Intellectual Property (TRIPS) Council, in its first meeting for 2014, discussed the topic of “Contribution of intellectual property (IP) to facilitate the transfer of environmentally rational technology”.

The inclusion of this agenda item, at the request of Ecuador, constitutes part of its proposal (IP/C/W/585) submitted in February 2013 to initiate a discussion on IP, climate change and technology transfer in this WTO body.

The WTO TRIPS Council met on 25-26 February 2014 in Geneva.

(The WTO TRIPS Council is the WTO member body that is responsible for administering and monitoring the operation of the TRIPS Agreement, a multilateral treaty that sets minimum standards for IP protection in WTO member states.)

During the TRIPS Council meeting held this week, India in its intervention stated that, “it is high time that the role of intellectual property is addressed in a constructive and balanced manner to address the issue of greenhouse gas emissions and climate change adaptation and mitigation efforts.” It stressed that since any effort in this direction was dependent on the diffusion of environmentally sound technologies (ESTs) to the developing countries, it was essential that barriers in accessing these technologies were suitably addressed.

India noted that currently, a significant portion of research and development (R&D) relevant to climate change was in the hands of a few private companies. Citing data from the World Intellectual Property Organization (WIPO), India said that 215,000 ‘clean energy’ patents were filed between 2000 and 2008 worldwide.  This, it added, showed that environmentally rational technology was controlled by private monopolies through patents and other IPRs.

Further, according to India, in the six energy technologies (wind, solar, photovoltaic, concentrated solar power, biomass-to-electricity, cleaner coal and carbon capture) it was observed that the US, Japan and Germany are clear leaders in energy innovations. It said that India, China or Brazil did not have any organizations amongst the top positions in this field. Therefore any diffusion of these technologies would be controlled by these few OECD companies. India underlined that in a scenario dominated by a business approach to a planetary problem, IPRs are likely to play a key role in determining access to technologies and the cost of using them.

India further stated that climate change mitigation and adaptation required not only a massive effort to develop suitable technologies, but mechanisms to make them readily available. Technology transfer could be termed successful only when the recipient enterprises developed expertise to develop technology through imitation or reverse engineering to adapt to the local conditions and eventually design and manufacture original products stressed India.

India further added that while the owners of technology believed that a free market approach would address all the issues, including diffusion into the developing countries, it was a fact that the owners would never transfer their technology willingly for fear of creating competitors. Further, according to India, it had been observed that even when there had been some sort of technology transfer, it had normally happened through second or third tier companies and that too at an exorbitant price and with several strings attached. It was therefore not possible that any efficient technology at affordable prices could ever be transferred through a market-based approach.

India reiterated that since a global problem could never be addressed comprehensively through a commercial approach, a pro-active role of public policy at national and international level would be critical. It is in this regard that it supported the approach proposed by Ecuador to facilitate the transfer of environmentally rational technology and also supported the proposal from Ecuador for further discussion on this subject at the next meeting of the Council.

The full text of India’s intervention is available on the Knowledge Ecology International’s (KEI) website http://keionline.org/node/1962

During the TRIPS Council meeting held this week, Ecuador also made two interventions under this agenda item.

In its opening intervention, Ecuador stated that the agenda item had been requested for two reasons: first, because it was a topic of importance to all member states and secondly because no member in the TRIPS Council had come out against the view that it was necessary to address the adverse effects of climate change and it was clear that this was an issue which affected the entire international community

Responding to the request by Switzerland during the June 2013 TRIPS Council meeting to indicate specific cases where the existing tools and procedures of the IP system had posed a problem, Ecuador stated that the information summarily included in patent applications did not allow the exercise of real transfer of technologies to developing countries.  In particular, patent applications did not include the information necessary to exploit the invention once the patent term expired or to be able to grant a licence.

Switzerland had also requested Ecuador to elaborate on what it meant by “excessive protection” as found in Para. 4 of its proposal.  Ecuador responded that “excessive protection” was understood as not meeting the objective of Article 7 of the TRIPS Agreement which states that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

Ecuador referred to the interventions by several countries such as the US and the European Union during the last meeting of the TRIPS Council which had referred to several studies which showed the important role of patents in generating innovation and transferring technologies. It asked those delegations to provide figures and statistical data to support their statements and particularly point to the number of licences of clean energy that have been granted to developing countries or concrete cases of technology transfer.

Ecuador in its intervention also referred to a study by Levin and Boldrine, as found in the book “Against Intellectual Monopoly", Chapter 8, which argues that the patent system and monopolies are not the best way to promote innovation. It added that authors such as Joseph Stiglitz (Nobel Laureate) and Becker had also stated that there were no suitable incentives offered by the patent system.

Ecuador also referred to an article by Matthew Littleton titled “The TRIPS Agreement and Transfer of Climate-Change-Related Technologies to Developing Countries", which was also referenced in Ecuador’s proposal. The article stated that, "Despite the numerous international commitments to promote transfer of climate-change related technologies to developing countries, these transfers are not occurring at a rate fast enough to help these countries in mitigation and adaptation to the effects of climate change.”

The full article is available here http://www.un.org/esa/desa/papers/2008/wp71_2008.pdf
  
Ecuador in its second intervention said that it was willing to include missing studies on the topic in its proposal and to prepare a new document on this basis. It also called on the WTO Secretariat to add new elements to the paper.  It stated that it was appropriate to continue the discussion on the basis of a reformulation of the proposal during the next session of the TRIPS Council.

Ecuador’s intervention in full (in Spanish) is available on the KEI website http://keionline.org/node/1964

Ecuador’s Proposal to the TRIPS Council

On 27 February 2013 Ecuador had formally submitted a proposal (IP/C/W/585) to the TRIPS Council which put forward the need to review the TRIPS agreement in light of the need to transfer environmentally sound technology (EST), especially to combat climate change.

The main aim of the proposal was “to prevent IPRs from becoming a barrier for the transfer of technology to the developing countries”.  The proposal was submitted as “a contribution by the multilateral trading system to global strategies to enhance access to clean energy, increase energy efficiency and accelerate worldwide implementation of renewable energy technologies from the stand point of intellectual property.” It put forward considerations for WTO members to assess the benefits of eliminating or reducing restrictions or barriers and facilitating the use of ESTs in the WTO and specifically in the TRIPS Council.

Ecuador’s submission in full is available here: http://www.wtocenter.org.tw/SmartKMS/fileviewer?id=131645

The  specific objectives of Ecuador's proposal are to:

a.   reaffirm the existing flexibilities in the TRIPS Agreement so that Members use them in connection with ESTs, for example through a declaration addressing flexibilities in the TRIPS Agreement, climate change and access to ESTs;

b.   initiate a review of Article 31 of the TRIPS Agreement to determine which of its provisions may excessively restrict access to and dissemination of ESTs, and particularly its paragraph (f) and the need to include provisions on, as the case may be, the transfer of expertise or know-how to implement compulsory licences;

c.   evaluate the regulation of voluntary licensing and the conditions thereof from the standpoint of the most pressing needs of the most vulnerable developing countries in relation to adaptation to and mitigation of climate change;

d.   recognise that adaptation to and/or mitigation of the harmful effects of climate change should be assimilated to the concept of "public interest", with the adoption of a provision authorizing exemption from patentability, on a case-by-case basis, for inventions whose exploitation is vital for the diffusion of ESTs needed for adaptation and/or mitigation of climate change;

e.   evaluate  Article 33 of the TRIPS Agreement to establish a special reduction in the term of protection for a patent of [X] years in order to facilitate free access to specific patented ESTs for adaptation and/or mitigation of the effects of climate change because of urgent need in the public interest; and

f.   inclusion of a mechanism in the TRIPS Agreement to promote open and adaptable technology licensing for results obtained from research into climate change and ESTs financed through public funds.

Ecuador’s proposal also called for recognition in the WTO of the need for cooperation and consistency in the actions of both the UN Framework Convention on Climate Change (UNFCCC) and WTO, with a view to eliminating or reducing restrictions or barriers to access to ESTs, and consequently facilitating their use by developing countries.

The proposal had also asked Members to consider adopting at the Bali WTO Ministerial Conference in December last year, a declaration in which Members would enshrine the principle that "nothing in the TRIPS Agreement can minimize or impair the flexibilities provided for in that Agreement, nor prevent or limit Members taking measures they consider necessary to protect their population from the effects of climate change and to make use of ‘environmentally sound technologies’".

The Ecuadorian proposal had also been discussed during the TRIPS Council’s previous session held in October 2013 and briefly in its June 2013 session where a number of developing countries (Cuba, Bangladesh, Bolivia, Brazil, India, Indonesia, Nepal, Rwanda and the Dominican Republic) had expressed their broad interest in continuing the exchange on the topic. 

The debate on the role of intellectual property rights in combating climate change is not new to the WTO. For example, in 2011 China and India in a communication (TN/TE/W/79) to the WTO Trade and Environment Committee highlighted that intellectual property rights must not become a barrier for the transfer of technology to developing countries. With the submission of Ecuador’s proposal to the TRIPS Council, the specific issue of the transfer of environmentally sound technology and the role of IP in this context has shifted to the WTO’s IP body.

The opening paragraph of the preamble to the Marrakesh Treaty establishing the WTO lists among the guiding principles and objectives of the world trading system the objective of sustainable development together with protection and preservation of the environment. However, as seen in discussion in other fora, the premise of the debate is whether IPRs, and in this context particularly the TRIPS Agreement, can adversely effect or impede the transfer of ESTs, particularly to the developing world.

The TRIPS Agreement in its preamble specifically refers to the promotion of technology transfer to developing countries and this is furthermore under pinned by the provisions of Articles 7 (Objectives) and 8 (Principles). However, developing countries have long maintained that IPRs, particularly patents, do limit the possibility to adopt ESTs since patent holders, mainly concentrated in developed countries, are able to raise the cost of access or deny it altogether.

However, developed countries particularly the US have maintained that IPRs play a positive role in promoting both green technology innovation and its transfer to the developing world. During the October 2013 TRIPS Council session several other developed countries such as the EU, Japan, Canada, New Zealand, Chile, Australia and Switzerland also countered that IP protection did not allow technology transfer noting also that the comparison with pharmaceutical patents was inappropriate because green technologies were considerably more competitive.

The next meeting of the WTO TRIPS Council is scheduled for 11-12 June 2014 where the agenda item is expected to be featured again.

 


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