Innovation and Technology Transfer of Environmentally Sound Technologies: The Need to Engage in a Substantive Debate

• Date: 01 April 2013
• Published date: 01 April 2013
• DOI: http://doi.org/10.1111/reel.12022

Innovation and Technology Transfer of

Environmentally Sound Technologies:

The Need to Engage in a Substantive Debate

Carlos M. Correa

It is often suggested that the rate of innovation in a

country is essentially dependent on the availability of

intellectual property protection. However, the eco-

nomic literature, particularly on the role of patents,

generally dismisses a direct and automatic relation-

ship between such protection and innovation. Patents

may not encourage innovations when some contextual

factors are not present, while other mechanisms may

be more effective. Patents, in addition, are not a good

indicator of innovation. Moreover, the proliferation of

patents, including in the area of technologies relevant

to address climate change, may block innovation and

create barriers to the transfer of technology to devel-

oping countries. This article argues that a serious dis-

cussion on the role of intellectual property, so far

eluded by developed countries, should be undertaken

in the context of climate change negotiations.

INTRODUCTION

The timely deployment of technologies for adaptation

to, and mitigation of, climate change is crucial to

address its multiple implications. Given the global

nature of the challenges posed by climate change, there

is a need to ensure the broadest possible diffusion of

relevant technologies, in both developed and develop-

ing countries.

A large body of technological knowledge lies in the

public domain and could be used in developing coun-

tries if adequate financial resources were available.

Another significant portion of relevant technologies,

however, are subject to intellectual property rights

(IPRs), notably patents. Most of such rights are pri-

vately held. Where recognized, the protected technolo-

gies can only be used with the authorization of, and

normally against payment to, the rights holder.

Recent climate change negotiations have shown deep

divergences between developed and developing coun-

tries on the role of IPRs, particularly with regard to the

transfer of technologies.1On the one hand, developed

countries argue that IPRs are essential to foster both

innovation and the transfer of technologies, and that

IPR issues, if any, need to be dealt with in the World

Intellectual Property Organization (WIPO) or the

World Trade Organization (WTO), and not in the

context of climate change negotiations. On the other

hand, many developing countries argue that IPRs can

be a barrier to the transfer of technology, and some of

them have proposed addressing elements of the IPRs

regime under international agreements on climate

change.2

So far, developed countries’ resistance to even mention-

ing IPRs has prevented any substantive discussion on

the issues raised by the recognition of IPRs in relation

to climate change technologies. Such resistance seems

to respond to the interests of their business communi-

ties in keeping a technological edge over emerging

economies.3For instance, at the 2010 Conference of the

Parties of the United Nations Framework Convention

on Climate Change (UNFCCC) in Cancún, developed

countries refused to include any reference to IPRs in

the key decision. Although a Technology Mechanism

was set up under the UNFCCC, comprising a Technol-

ogy Executive Committee (TEC) and a technology

centre and networks, there is no mention of IPRs. This

is despite the fact that developing countries had made

IPRs a priority issue in the technology transfer negotia-

tions,4and the fact that actions related to technological

development and transfer would almost inevitably raise

IPR issues.5

1C. Correa, ‘Intellectual Property Rights under The UNFCCC:

Without Response to Developing Countries’ Concerns’, in J.D.

Sarnoff (ed.), Research Handbook on Intellectual Property and

Climate Change (Edward Elgar, 2013, forthcoming).

2Ibid.

3See, e.g., J. Oh, ‘Business Interests and US–China Relations on

Climate Change’, 27:1 Pacif‌ic Focus (2012), 36.

4See M. Khor, ‘Complex Implications of the Cancun Climate Confer-

ence’, 14:52 Economic and Political Weekly (2010), 15.

5The UNFCCC’s Ad Hoc Working Group on Long-term Cooperative

Action forwarded, on 7 December 2012, a document prepared by its

Chair to the 18th meeting of the UNFCCC’s Conference of the Parties

(COP-18) which, again, does not contain any explicit reference to the

issue of IPRs. Third World Network, AWG-LCA Concludes Its Work in

Doha (TWN Doha News Update, 11 December 2012), found at:

<http://www.twnside.org.sg/title2/climate/news/doha01/TWN_update

22.pdf>.

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Review of European Community & International Environmental Law

RECIEL 22 (1) 2013. ISSN 0962-8797

© 2013 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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