Monday, October 19, 2009

Socialist NGO IP Ethics Panel Reflects Developing Country Demands for Compulsory Licensing & Open Source Procurement of Climate Change Technologies

Panel Calls For An Ethical Framework For IP And Climate Change
By Kaitlin Mara

IP Watch

October 16, 2009

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 nongovernmental 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 Instituteof 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.


Bangkok Climate Meeting Leaves Political Issues, Compulsory Licences Unresolved

By Kaitlin Mara

IP Watch

October 12, 2009

BANGKOK – Humanity may be facing the single greatest threat to its future in history, yet significant political disagreements still stand in the way of common action needed to combat what will be a common crisis. One potential blocking point appears to be whether compulsory licensing may be encouraged for poor countries needing climate technologies.

The Bangkok session of the ongoing UN climate change talks drew to a close Friday with little progress on the most politically difficult issues: who should be obligated to undertake action to combat climate change, what actions should be performed, and who should be footing the bill.

Past UN discussions on this issue place the onus on developed nations to take the lead, citing historical responsibility for the problem. Some developed nations are also calling for commitments from the larger developing countries.

Concessions need to come from developed countries, said Michael Zammitt Cutajar, who chairs one of the working groups at the talks, in response to a question at a press conference on 9 October. “Of course,” he added, there will be no agreement “until developing countries are clear about how they can contribute.”

Time is short to progress on these matters: five negotiating days are left until the UN Framework Convention on Climate Change is meant to come to an agreement in Copenhagen on the next steps to avert a potential global catastrophe. The next meeting of the UNFCCC will be 2-6 November in Barcelona, Spain. The Copenhagen Climate Change Conference will run 7-18 December. The Bangkok session ran from 28 September to 9 October.

The technology-transfer negotiating text – in which intellectual property appears – if anything appears to have grown in length this week. A non-paper released by the chairs[pdf] on the final day, 9 October, contained a fifth option on intellectual property (up from four in the previous non-paper released 2 October IPW, Environment, 6 October 2009).

Creating and Distributing the Right Technology

Technology development and diffusion is one of the linchpins of the long-term strategy to reduce emissions that threaten the planet’s atmosphere. It is the development of new environmental technologies that will make necessary reductions possible, and it is access to new technology - along with capacity building and financial support - that will allow developing and least-developed countries to participate in the new, low-carbon future.

Within this framework, intellectual property is shaping up to be a complex part of the puzzle - perhaps even a deal-breaker if positions remain as diametrically opposed as they currently are - though it is as yet unclear what kind of an effect IP has on the diffusion of environmental technology.

What is clear is the strength of the positions of member states. The United States has said it will refuse an agreement containing compulsory licensing and several other developed country members indicated a lack of willingness to discuss changes the IP system.

On the other hand, a Bolivian submission from September[pdf; Bolivia's submission begins on page 8] that many developing country delegates referred to in Bangkok says proposes the UNFCCC reaffirm “that intellectual property has been a barrier to the transfer of and access to environmentally sound technologies and associated know-how [and] urgent action needs to be taken to overcome this barrier.”

And there has been concern among many developing countries, intergovernmental agencies and non-governmental agencies that climate change will lead to new forms of protectionism that will only further shut developing countries out of the market (see, for example, the recent report of Sangeeta Shashikant of the Third World Network on Climate, IPRs, and Protectionism).

The new paragraph in the text of 9 October, which sources said was added at the request of the “G77” group of developing countries and China reads: “Consistent with their obligations under international treaties and agreements, Parties may compulsorily license specific technologies for the purpose of mitigation and adaptation to climate change, where it can be demonstrated that those patents and licenses act as a barrier to technology transfer and prevent the deployment or diffusion of that technology within a given country.”

With such differentiated stances, the UNFCCC secretariat may lack the technical expertise to address these issues.

US, Others Take Exception to IP Exceptions

The United States signalled dissatisfaction that the section on IP remained in the chair’s text at all during the technology transfer group final informal meeting in Bangkok on 9 October, according to sources.

“The United States will not do compulsory licences,” Jonathan Pershing - deputy special envoy for climate change at the US Department of State - later told Intellectual Property Watch. On intellectual property, he said, the US “will look at things” that increase technology diffusion in the market, not compulsory licensing which “does the opposite.”

They are not alone in this stance. “We will not agree on any change in the system of IPRs,” Anders Turesson, chief negotiator on climate for Sweden on behalf of the European Union, told Intellectual Property Watch. “It would be counterproductive and counter the development of technology we need so badly.” Though, he added, in case of a specific technology need, solutions might be discussed. A separate participant to the technology transfer debates said there was “no willingness on the part of industrialised countries to discuss IP” during the Bangkok meeting.

The US statements are being watched in particular as it is currently the only industrialised nation that has not ratified the Kyoto Protocol, the last major environmental agreement to come out of the UNFCCC, which required a set of developed countries to commit to reductions in their emissions. It is also one of the world’s largest polluters both in aggregate and per capita, so it is seen as particularly important that the country sign on to the next generation of climate protection measures.

“There is no agreement in Copenhagen without the United States in it,” said Cutajar, who chairs the Ad-Hoc Working Group on Long-Term Cooperative Action, which is the umbrella working group under which technology development and transfer issues are being discussed.

There may be domestic difficulties in the US, however, as the Congress is still working on a climate change bill. Not having it complete by December “doesn’t mean that no deal is possible,” said Pershing, but added it was difficult to commit to specific numbers without Congress. The bill that passed the House of Representatives [pdf] earlier this year calls IP a “key driver of investment and research” and says “any weakening of intellectual property rights protection poses a substantial competitive risk to US companies” and says US funding to developing countries should “promote the robust compliance with and enforcement of” IP rights protection.

A draft bill before the Senate lists as one of its purposes in international clean energy deployment as to “promote robust compliance with and enforcement of existing international legal requirements” for IP protection. The bill was introduced by Democratic Sens. Barbara Boxer (California) and John Kerry (Massachusetts).

But is IP the Issue?

Some are questioning whether IP is the key problem in climate change, or whether infrastructure, lack of financing, or lack of capacity might be greater problems.

The “barrier is not IPR,” Turesson. The “barriers lie somewhere else… [in] poor situations, or environments.”

“Barriers to technology transfer look different in different countries, and they should be described” and addressed as such, he added. “Technology goes where capital goes” – so that in countries that are poor and not growing, then capacity building and financing is key.

Thaddeus Burns, senior counsel on IP and trade for General Electric, said tariffs on green technology add more to the price of the good than fees on IP licensing.

Lesotho in a party submission [pdf, Lesotho's submission begins on page 5] from May 2009 on behalf of the least developed countries (LDCs) said low capacity to adapt technology in LDCs might mean IP is of less significance than in “major” developing countries.

Others have said that a UNFCCC agreement with IP in it may not provide any additional rights on top of what is already guaranteed in the World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement, which guarantees governments the right to issue compulsory licences, even without prior negotiation with the rights holder, in cases of “extreme urgency” or “public non-commercial use.”

Financing and The Need To Move Forward

Whatever activities are decided, from technology transfer projects to emissions reductions, financing them will be a critical issue. In particular, financial help for developing countries must be available.

“What is the point of taking your llama to a dry watering hole?” said Yvo de Boer, executive secretary of the UNFCCC, referring to the difficulty in securing funding resources. Industrialised country leadership and financial support are needed, he said.

“There’s been very constructive engagement from developing countries,” he added. “But without financial backing, what’s the point?”

Ambassador Di-Aping Lumumba of Sudan said in a press statement that there is a “massive leadership deficit” in developed countries, and called on their citizens to correct this.

These issues and others will be taken up again in Barcelona, during which time many delegates in Bangkok said they hoped substantial issues would be addressed and moved towards resolution.

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