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The TRIPS Patent Protection Provisions and Their Effects on Transferring Climate Change Technologies to LDCs and Poor Developing Countries: A Critical Appraisal

Published online by Cambridge University Press:  19 October 2012

Khorsed ZAMAN
Khorsed ZAMAN*
Affiliation:
Macquarie University, Australia
*
[email protected]
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Abstract

Despite the existence of almost eighty international agreements and legal instruments, there has not been a marked development in the transfer of climate change technologies to poor and the least developing countries. This article investigates the role of intellectual property rights (IPDs) and scrutinizes the effects of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on the transfer of these technologies. It explores the TRIPS patent protection provisions and examines the associated flexibilities like compulsory licensing and parallel import options in the context of the transfer of climate change technologies. It finally concludes that the TRIPS patent protection rules, including the existing flexibilities, are one of the biggest impediments to the transfer of these technologies to poor and least developed countries. New agreements or promises on the transfer of green technologies would be fruitless if these TRIPS rules are not amended.

Type
Articles
Information
Asian Journal of International Law , Volume 3 , Issue 1 , January 2013 , pp. 137 - 161
Copyright
Copyright © Asian Journal of International Law 2012

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Footnotes

*

PhD (Macquarie University); Lecturer in Law, Department of Accounting and Corporate Governance, Macquarie University, Australia. The author acknowledges the insightful comments of the reviewers on an earlier draft of the article.

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2. So far, there is no standard and uniform definition of “climate change technology”. It is also popularly known as “green technology” or “clean technology”, or “cleantech” for short. Generally, these technologies are a diverse range of products and services that are more economically competitive and environmentally sustainable than their conventional counterparts. These technologies harness renewable materials and energy sources, dramatically reduce the use of natural resources (especially the dependency on fossil oil), generate less waste, and cause less environmental damage than the available alternatives.

3. Numerous mitigation and adaptation strategies to address climate change are now clearly identified and widely recognized in almost all climate change negotiations, conventions, and agreements. Mitigation strategies are mainly some anthropogenic intervention to reduce the sources of, or to increase the sinks of, greenhouse gases. Adaptation strategies, on the other hand, are defined as an adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects. Technologies for lowering greenhouse gas emissions, renewable and energy-efficient technologies, energy-efficient transportation technologies, energy and material-saving building and construction technologies are examples of technologies for mitigation. In contrast, technologies to control desertification, stop the rise of sea levels and the acidification of oceans, control floods, drought, destructive pests, and tropical diseases are examples of technologies for adaptation. They also include water capture, water reuse, and other water-saving technologies. Generally, these technologies are also known as green technologies.

4. They include multinational corporations, as well as private and public research institutions and organizations.

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19. It includes, among others, the Patent Information Database (PID) and the Patent Cooperation Treaty of the WIPO. See PCT, supra note 6. It is noteworthy that before the creation of the WTO in 1995, the WIPO and its arrangements were the main international initiatives for the promotion and protection of intellectual property rights. Previously, global IPR issues were almost exclusively administered and monitored by the WIPO. The creation of the WTO and the adoption of TRIPS have changed the regulatory role and power of the WIPO. This power-shift and power-sharing were made through an agreement between WIPO and the WTO. See Agreement Between the World Intellectual Property Organization and the World Trade Organization, 22 December 1995, online: WTO <http://www.wto.org/english/tratop_e/trips_e/wtowip_e.htm> [WTO-WIPO Cooperation Agreement].

20. Agreement on Trade Related Aspects of Intellectual Property Rights, 15 April 1994, online: WTO <http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm> [TRIPS]. Arts. 4(1)(h), 4(3), 4(4), 4(5), and 4(7) of the UNFCCC, art. 10(c) of the Kyoto Protocol, arts. 3, 6, 8, 10, and 11 of the Copenhagen Accord, chap. IV of the Agenda 21, and mainly art. 66(2) of TRIPS deal with technology transfer to poorer countries. See UNFCCC, supra note 13; Kyoto Protocol, supra note 14; Copenhagen Accord, supra note 16; Agenda 21, supra note 18.

21. A multilateral fund was created to help developing countries phase out the use of ozone-layer depleting substances under the Montreal Protocol. See Montreal Protocol, supra note 12. It is said to be the first financial mechanism created under an international environmental treaty to help poor developing countries in the mitigation and adaptation of green technologies. In 2009, the Copenhagen Accord set up a provision for establishing the “Copenhagen Green Climate Fund”, which will raise 100 billion dollars per year for developing countries. See Copenhagen Accord, supra note 16, at paras. 10 and 11. It will not be fully in place until 2020. See “Summary of the Copenhagen Climate Change Conference: 7−19 December 2009” Earth Negotiations Bulletin (22 December 2009), online: Earth Negotiations Bulletin <http://www.iisd.ca/download/pdf/enb12459e.pdf> [2009 Earth Negotiations Bulletin].

22. Tove Iren S. GERHARDSEN, “IP References Left Out of Last Minute, Weak Global Climate Deal in Copenhagen” Intellectual Property Watch (19 December 2009), online: Intellectual Property Watch <http://www.ip-watch.org/2009/12/19/ip-references-left-out-of-last-minute-weak-global-climate-deal-in-copenhagen/>; Adam MORTON, “Anger at ‘Secret’ Climate Change Deal” The Age (10 December 2009).

23. 2009 Earth Negotiations Bulletin, supra note 21.

24. Ibid.

25. Copenhagen Accord, supra note 16.

26. The Sixteenth Session of the UNFCC Conference of Parties (COP) was held in Cancun, Mexico from 29 November to 10 December 2010. The COP Seventeenth Session was held in Durban, South Africa from 28 November to 9 December 2011. So far, these are the latest COP meetings. In Cancun, there were negotiations among members regarding transfer of technologies and associated IPR difficulties, but these issues were discarded in the final agreement. See Baskut TUNCAK, “Technology Mechanism for Climate Change: Still in the Lab” Centre for International Environmental Law Blog (18 April 2010), online: Centre for International Environmental Law Blog <http://ipsd.typepad.com/ipsd/2010/04/technology-mechanism-for-climate-change-still-stuck-in-the-lab.html>.

27. See online: United Nations Framework Convention on Climate <http://unfccc.int/meetings/durban_nov_2011/meeting/6245/php/view/decisions.php>.

28. TRIPS, supra note 20.

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31. Kyoto Protocol, supra note 14.

32. Agenda 21, supra note 18. At the UNCED conference, developing countries demanded specific resolutions on technology transfer and financial resources. The key issue in the negotiating process of the conference was the role, protection, and flexibility of intellectual property rights while transferring technologies to developing countries. The Group of 77 (G-77), a leading group of developing countries, argued that intellectual property rights had to be eased in cases of EST, otherwise there would be obstacles to accessing these technologies. Developed countries delegations, on the other hand, were adamant and refused to accede on this point. However, the Agenda 21 finally adopted a chapter on technology transfer, which called for action to promote and finance access to and transfer of environmentally sound technologies to developing countries on favourable, concessional, and preferential terms. These terms must be on a “mutually agreed” basis and must respect intellectual property rights.

33. Ibid.

34. UNFCCC, supra note 13.

35. Kyoto Protocol, supra note 14. The CBDR principle is succinctly described in Principle 7 of the Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, UN Doc. A/CONF151/26 (Vol. I), and mentioned in arts. 3 and 4 of UNFCCC, ibid. It has been reiterated in art. 1 of the Copenhagen Accord, supra note 16. It appears to be a stepping stone to the extension of climate change assistance to poorer countries. However, thus far, it either serves as rhetoric or addresses the responsibility in a form that is not practically helpful for LDCs and developing countries. See also Ellen Margrethe BASSE and Sanford E. GAINES, “Common But Differentiated Responsibilities and Respective Capabilities as Part of the Post 2012 Climate Regime” (2010) 2 Nordic Environmental Law Journal 189−204.

36. This has been reiterated in the preamble of the UNFCCC, which states, “the largest share of historical and current global emissions of greenhouse gases has originated in developed countries”. See UNFCCC, supra note 13.

37. Bali Action Plan, supra note 15. The Bali Action Plan outlines four basic pillars of climate change, which are enhanced plans for mitigation, adaptation, technology transfer, and financing and investment to support actions on the mitigation, adaptation, and transfer of climate change technologies.

38. United Nations, “Ad-hoc Working Group on Long-term Cooperative Action Under the Convention: Revised Negotiating Text” (June 2009), online: UNFCCC <http://unfccc.int/resource/docs/2009/awglca6/eng/inf01.pdf>.

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49. Advanced and cleaner fossil fuel technologies, pre-combustion technologies that combine heat and power, hydrogen cells, and hybrid vehicles are some important examples of environmentally friendly technologies.

50. Supra note 3. See generally, United Nations Development Programme, “Handbook for Conducting Technology Needs Assessment for Climate Change” (September 2009), online: UNFCCC <http://unfccc.int/ttclear/pdf/TNAHandbook_9-15-2009.pdf> at 23−34.

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54. TRIPS, supra note 20.

55. Ibid., art. 33.

56. Ibid., art. 27.

57. Ibid., arts. 7, 8, and 27(1).

58. Ibid., art. 27(1).

59. Canada-Term of Patent Protection, Panel Report of 5 May 2000, WT/DS170/R at para. 121 [Canada Patent Protection].

60. Ibid., at para. 105.

61. TRIPS, supra note 20, art. 66(2). This provision is examined later.

62. For example, there was debate among the parties to the Kyoto Protocol on the effects of IP protection on the transfer of technologies at the first meeting of the Ad-hoc Working Group on the Further Commitments for Annex I Parties under the Kyoto Protocol (AWG), and the Ad-hoc Working Group on Long-term Cooperative Action under the Convention (AWGLCA). See Kyoto Protocol, supra note 14. Developed countries, including Australia and the US, argued strongly in favour of the existing IP protection system and claimed that IP protection never acts as a barrier, but instead works as a catalyst for technology transfer. On the other hand, a number of developing countries, including China, Cuba, India, Indonesia, Tanzania, and others, stressed the need to address the IP issues appropriately within the technology transfer mechanisms.

63. See generally, United Nations Framework Convention on Climate Change, “Synthesis of Report on Technology Needs Identified by Parties not Included in Annex I to the Convention”, online: UNFCCC <http://unfccc.int/resource/docs/2006/sbsta/eng/inf01.pdf> [UNFCCC Report 2006].

64. Admittedly, adoption of a strict IP protection mechanism is a contentious issue between the developed and developing nations. For theoretical analysis of this controversy, see Josef E. STIGLITZ, “Economic Foundations of Intellectual Property Rights” (2008) 57 Duke Law Journal 1693.

65. World Intellectual Property Organization, “WIPO's Contribution to Meeting the Challenges of Climate Change”, online: WIPO <http://www.wipo.int/export/sites/www/about-wipo/en/pdf/climate_change_conf.pdf>.

66. Very recently, the nexus between intellectual property rights and sustainable development has attracted much attention and it is now a hotly debated issue in the UNFCCC negotiations. See generally, Center for International Environmental Law, “Intellectual Property Quarterly Update”, (Fourth Quarter 2008), online: CIEL <http://www.ciel.org/Publications/IP_Update_4Q08.pdf>.

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68. Ibid., at 1. This is the main limitation and one of the important shortcomings of the research, which is acknowledged by the author.

69. For example, arts. 7 and 8 of TRIPS, supra note 20, which seek to establish a balance between the rewards for innovation and social objectives.

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73. Ibid.

74. See generally, Kim, supra note 43.

75. Ibid.

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77. UNFCCC, supra note 13; Montreal Protocol, supra note 12; Kyoto Protocol, supra note 14; Bali Action Plan, supra note 15; Copenhagen Accord, supra note 16; TRIPS, supra note 20.

78. This power-sharing was done through an agreement between WIPO and the WTO. See WTO-WIPO Cooperation Agreement, supra note 19.

79. TRIPS, supra note 20, art. 64.

80. The deadline for developing countries to comply has expired, while the deadline for LDCs is 1 July 2013.

81. TRIPS, supra note 20, art. 7.

82. From the TRIPS negotiating history, it is clear that it was the intention of most of the developing country negotiating parties to strike a balance between stricter IP protections and addressing public necessities. See World Trade Organization, “Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods: Synoptic Tables Setting Out Existing International Standards and Proposed Standards and Principles” (September 1989), online: WTO <http://www.tripsagreement.net/documents/GATTdocs/Synoptic_Tables_Setting_Out_Existing_International_Standards_and_Proposed_Standards_and_Principles_-_Revision_1_E.pdf>, para. 5. However, these views are not completely reflected in two renowned WTO disputes on TRIPS. See India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, and Canada Patent Protection, supra note 59.

83. Canada-Term of Patent Protection, Report of the Appellate Body of 18 September 2000, WT/DS170/AB/R at para. 101.

84. TRIPS, supra note 20, art. 8(1).

85. Ibid., art. 8(2).

86. Ibid., arts. 7 and 8.

87. Ibid., art. 66(1).

88. International Centre for Trade and Sustainable Development, “LDCs Granted Limited Extension for Implementing TRIPS Commitments” (30 November 2005), online: ICTSD <http://ictsd.org/i/ip/39841/>. When the WTO agreements took effect on 1 January 1995, developed countries were given one year to ensure that their laws and practices conformed to TRIPS. Developing countries and transition economies (under certain conditions) were given five years, until 2000. Least-developed countries had eleven years, until 2006 (which has now been extended to 2013 for general matters), and until 2016 for pharmaceutical patents and undisclosed information. See World Trade Organization, “Intellectual Property: Protection and Enforcement”, online: WTO <http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm>.

89. TRIPS, supra note 20, art. 66(2).

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98. As is mentioned in art. 31 of TRIPS; see TRIPS, supra note 20.

99. The compulsory licence is generally considered to be associated with pharmaceutical patents, but according to art. 31 of TRIPS, it could apply to any patents in any field; see ibid.

100. Ibid., art. 31(h).

101. Ibid., art. 31(b).

102. Ibid., art. 31(f).

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107. TRIPS, supra note 20, art. 31(f).

108. The developed nations are Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, the United Kingdom, and the United States. Ten other members made the same decision after joining the EU. They are the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, and Slovenia.

109. World Trade Organization, “Compulsory Licensing of Pharmaceuticals and TRIPS”, online: WTO <http://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm>.

110. Ibid.

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114. Ibid., art. 31(b).

115. This term was first used by former US Vice-President Al Gore. For details, see generally, Al GORE, An Inconvenient Truth: The Planetary Emergency of Global Warming and What We Can Do About It (New York: Rodale, 2006).

116. For example, see Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free-Trade Area, 24 October 2000, online: The World Bank <http://wits.worldbank.org/GPTAD/PDF/archive/UnitedStates-Jordan.pdf>, art. 4, para. 20(b).

117. See WTO: “Doha Declaration on the TRIPS Agreement and Public Health”, supra notes 103 and 104, and WTO: “Decision of the General Council of 30 August 2003”, supra note 105.

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124. Canada was the first country in 2008 to export the first shipment of generic drugs to Rwanda. See “First Generic Drugs En Route to Africa Under 5 Year Old WTO Deal” Bridges Weekly Trade News Digest (25 September 2008), online: ICTSD <http://ictsd.org/i/news/bridgesweekly/29778/>.

125. WTO: “Amendment of the TRIPS Agreement”, supra note 112; WTO: “Amendment of the TRIPS Agreement - Extension of the Period for the Acceptance by Members of the Protocol Amending the TRIPS Agreement”, supra note 112; WTO: “Members Accepting Amendment of the TRIPS Agreement”, supra note 112.

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134. WTO: “Doha Declaration on the TRIPS Agreement and Public Health”, supra note 103, at para. 5(d).

135. Ibid. See also TRIPS, supra note 20, art. 6.

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138. TRIPS, supra note 20, arts. 7 and 8.

139. Copenhagen Accord, supra note 16; 2009 Earth Negotiations Bulletin, supra note 21.

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