Barriers to Climate Technology Transfer – The Chimera of Intellectual Property Rights

It has principally been in the context of technology transfer that the intellectual property (IP)/climate change relationship has been explored to date. Moreover, it has been IP lawyers rather than climate lawyers that have made the running in the literature. One of their key concerns is that IP protection might act as an impediment to the acquisition of new technologies in developing countries, with deleterious impacts on climate change mitigation. This paper explores the relative non-engagement with this issue by climate lawyers and argues that there is a rational basis for this lacuna, namely, that of the many barriers to the deployment of environmentally sound technologies, intellectual property rights (IPRs) protection is a relatively peripheral one. Whilst the same may not be said for adaptation technologies, for the purposes of maintaining average temperatures within the strictures of the 4th Assessment Report, recourse to policy tools such as the McKinsey cost curve reveal that the prospect of IPRs operating as a significant barrier to deployment is substantially chimerical.

Amidst the many disappointments in the ongoing climate change negotiations, technology transfer (TT) stands out as an area in which substantive progress has been made and may well be embedded. The precise legal form that this will take remains unclear but there has undoubtedly been a series of advances pertaining to the development of the cross-border sharing of mitigation and adaptation technologies, not least the Technology Mechanism established by the Cancun Agreements.1 These advances compare favourably with other building blocks of a climate change deal and whilst a fully fledged agreement on TT may not be easily attainable, they mark an area in which there are reasonable grounds for optimism. That said, there is a growing concern from some quarters that the advances made in the TT realm of the UNFCCC are vulnerable to the challenges posed by a discrete set of legal entitlements, namely, intellectual property rights(IPRs). It is this relationship – between TT in the climate change mitigation arena and IPRs – that is the primary focus of this paper.

Copyright: © Lexxion Verlagsgesellschaft mbH
Source: Issue 2/2011 (Juni 2011)
Pages: 14
Price: € 41,65
Autor: Navraj Singh Ghaleigh

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