Challenges for Technology Transfer in the Climate Change Arena: What Interactions with the TRIPS Agreement?

Abstract

The United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol were built on a political bargain directly involving technology transfer. On one side, industrialized countries would take the first steps to reduce GHG emissions while transferring technology to enable developing countries to make progress on carbon efficiency. However, developing countries have argued that commitments on technology transfer have not been met and that industrialized countries have largely failed to provide effective transfer of environmentally sound, climate-related technologies. Developing countries have argued that too restrictive and high intellectual property protection constrains their ability to access products and knowledge to enable them to address climate change and develop. The argument on intellectual property is two-fold: intellectual property policies in industrialized countries serve to promote and protect their own knowledge industries and prevent participation by enterprises in developing countries; the international framework on intellectual property, embodied by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights4 (TRIPS Agreement), denies developing countries the policy space that they require to try and ensure that technology transfer takes place. Developing countries argue that they need such policy space in light of the failure of industrialized countries to deliver on their technology transfer commitments. There remains considerable disagreement in the UNFCCC as to the actuality of TRIPS as a barrier to addressing technology transfer.This Chapter will try to address two main issues raised by the UNFCCC debate on the need to address IP: what constraints does the TRIPS Agreement place on unilateral action by developing countries; what constraints does WTO and TRIPS jurisprudence place on the UNFCCC’s ability to justify IP measures.

Keywords: Climate change, technology transfer, intellectual property, UNFCCC