Nirav Bhatt is an LLM Candidate at Osgoode Hall Law School.

From 2-6 November 2009, the meeting of the Ad Hoc Working Group for the ongoing negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol to enhance international climate change cooperation took place in Barcelona, Spain. The Barcelona talks were the last round of negotiations before the fifteenth session of the Conference of the Parties which are to be held in Copenhagen, Denmark, in December 2009. Yvo de Boer, the executive secretary of UNFCCC, stressed the urgency for industrialized countries to raise their ambitions under the common but differentiated responsibility for protecting the environment from the hazards of climate change.

A high-level conference on “Climate Change: Technology Transfer and Development” took place in New Delhi, India, under the auspices of the United Nations Department of Economic and Social Affairs. The conference brought together governments, experts, industry representatives and civil society to help formulate a roadmap for technology in the context of climate change mitigation and adaptation to support the UNFCCC process. It sought to advance understanding on key actions needed to accelerate technology development and transfer in all countries in accordance with their national needs in order to help pave the way for a successful outcome in Copenhagen later this year.

Addressing these issues of climate change and as a possible solution for the problem, India’s Prime Minister Mr. Manmohan Singh said, developed economies must release green technology to help developing nations cut carbon emissions in the same way that pharmaceutical companies relaxed patents to help sufferers of HIV/AIDS. As reported in Financial Times, Mr. Singh appealed for a review of IP rights for green technology, saying they needed to be balanced to allow their wider deployment to halt the potential ravages of global warming. Mr. Singh’s comparison with responses to HIV/ AIDS recalls the bitter struggle with pharmaceutical companies over the price of anti-retroviral drugs and the use of generic drugs. Singh said, climate friendly and environmentally sound technologies should be viewed as a global public good and his call was echoed by Xie Zhenhua, vice-chairman of the National Development and Reform Commission of China, who said gaining access to technology was a “crucial issue” for Copenhagen.

However, this leaves the issue of compulsory licensing unanswered.  One likely restricting point appears to be whether compulsory licensing may be encouraged for poor countries needing climate technologies. “The United States will not do compulsory licenses,” Jonathan Pershing, deputy special envoy for climate change at the US Department of State, told IP Watch. The US statements are being watched in particular as it is currently the only industrialized nation that has not ratified the Kyoto Protocol, 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.

The US Senate Democrats last Thursday, pushed a sweeping climate change bill through a key committee, shrugging off a boycott by Republicans who oppose the measure. It is important to note that although the US Senate is working on a  climate change bill, the Democrats have abandoned hopes of wrapping up the process before Copenhagen. This is relevant because it is much more likely that the US will take a solid stance in the December meeting, if its own domestic climate change bill is in place by then. That bill refers to a strong system of IP so as to protect and encourage research and investment.

The issue of technology transfer is raised in the text of the UNFCCC. In Article 4 paragraph 7, the UNFCCC states that developing countries’ ability to implement their commitments under the convention will depend on the effective implementation by developed nations of their commitments under the convention related to financial resources and transfer of technology. While the law and practice of compulsory licensing is well established for pharmaceuticals, it remains limited for green technology. The developing countries seek to better define the scope of national emergencies related to climate change.

Therefore now, the focus is on the US and the progress of its domestic climate change legislation will more or less direct the stance that US will take. President Obama’s recent Nobel Peace Prize may also play a role in the talks, as the prize specifically mentioned his contribution to fight global warming amongst other factors. This may put some added pressure on him to advance negotiations and hopefully arrive at a compromise commonly agreeable.

Posted in Cross Border Issues, Patents, Tech Transfer