TRANSFER OF ENVIRONMENTALLY SOUND AND GREEN TECHNOLOGY TO PREVENT CLIMATE CHANGE IN IPR PROTECTIVE REGIME: A CRITICAL STUDYby

KISHAN kumarList of Abbreviations

EGTT

Expert Group of Technology Transfer

EST

Environmentally Sound Technology

IPCC

Intergovernmental Panel on Climate Change

IPR

Intellectual Property Rights

LDCs

Least Developed Countries

MLF

Multilateral Fund

TRIPS

Trade Related Aspects of Intellectual Property Rights

UN

United Nations

UNCED

United Nations Conference on Environment and Development

UNCHE

United Nations Conference on the Human Environment

UNEP

United Nations Environment Programme

UNEP

United Nations Environmental Programme

UNFCCC

United Nations Framework Convention on Climate Change

WMO

World Meteorological Organization

WTO

World Trade Organisation

Contents

iiList of Abbreviations

1I.Introduction

1II. Climate Change a Real and Grave Threat

2III. Technology and Sustainable Development

5IV. TRIPS and Environmentally Sound Technology

8V. Significance of Technology Transfer to Climate Change Mitigation

8United Nations Conference on the Human Environment (UNCHE)

91985 Vienna Convention and 1987 Montreal Protocol

101992 Rio Convention and the Establishment of the UNFCCC

12VI. Conclusion

TRANSFER OF ENVIRONMENTALLY SOUND TECHNOLOGY TO PREVENT CLIMATE CHANGE IN IPR PROTECTIVE REGIME: A CRITICAL STUDYI. IntroductionThe urgency of an effective and coordinated global response to meet the climate change challenge has been well acknowledged in the recent years. It has increasingly been realised that innovation and dissemination of Environmentally Sound Technologies are the need of the hour to prevent further degradation of environment and to ensure sustainable development. A perusal of the human history reveals that technology is the source of greenhouse gases emissions culminating into the potential threat of climate change that looms over the human civilization. In the recent years, there is a growing awareness that climate change is a major threat to the prosperity, food security, economic activity, and international peace. It was in light of the major threat of the climate change that in order to assess and provide the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socio-economic impacts, an international body namely, the Intergovernmental Panel on Climate Change (IPCC) was jointly established by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) in 1988. The same was subsequently endorsed by the United Nations (UN) General Assembly.II. Climate Change a Real and Grave ThreatThe main activity of IPCC is to provide at regular intervals Assessment Reports of the state of knowledge on climate change. The latest report is that of Climate Change 2007. The Fourth Assessment Report of 2007 has brought to light that climate change is a real and a very grave problem and above all a man-made problem. On the basis of several scientific studies and direct observations of change in temperature, sea level and snow cover in the northern hemisphere during the period 1850-2007 the Fourth Assessment Report has concluded that the Earths climate is slowly but steadily changing.

Earths temperature depends on the balance between energy entering and leaving the planets system which is a natural process in the form that solar energy is absorbed by the Earths system and then by reflecting back that energy into the space the Planet cools and avoids warming. However, when this natural process is disturbed the Earths energy balance gets changed which depending upon the quantum of interference may result into anything from disaster to catastrophe. Though, many factors including both natural and human are responsible for causing change in Earths energy balance system. While the natural factors are not easily amenable to human control the human activities must be checked to prevent further degradation of the climate. According to the experts, increase in the atmospheric concentration of the greenhouse gases and aerosols, solar radiation and ozone depletion lead to global warming which in turn, affect the energy balance of the climate system, thereby causing climate change. III. Technology and Sustainable DevelopmentIt was commonly believed by the environmental activists of the 1960s that large scale industrial development was to blame as the main source of environmental degradation. Accordingly, scientific and technological developments and inventions came to be perceived as real culprit for the environmental hazards. As a result, anti-technology attitude was professed and propagated by the activists. It was subsequently due to some pioneer work in the field that promoted the idea of alternative technology which changed the popular perceptions of the activists.

There is an increasing awakening to the fact that industrial development is not only essential and indispensable for economic growth and development, but that the transition away from the current dependence on basic agricultural production will require a shift towards industrialisation and the related service sector activities. Technological innovation which was perceived as a potential hazard and threat to the environment is now widely accepted as offering new opportunities for reducing environmental degradation and promoting sustainable development.

The significance of technology transfer as the driving force for increased industrial output, economic development and prosperity of the developing and least developed countries, and enhanced living standard of their people remains axiomatic and needs no theoretical elaboration. In the recent years, transfer of technology has become a much debated topic both at the national and international forums and has attracted the attention of a large section of society. Especially, since the establishment of WTO in 1995, the objectives, mode, technical and legal aspects of transfer of technology have emerged as areas of key interest for academicians, universities, industries and lawyers worldwide. Not only technologically most advanced nations but even the least developed countries (LDCs) on the scale of technical assets, show keen interest in the subject. The developed countries want to maintain their lead on the technology scale and therefore at international forums they strenuously lobby and argue for global protection of their Intellectual Property Rights (IPRs). The developing (including emerging industrialised) and least developed countries on the other hand view access to advanced technology as the primary means to enhance their economic and industrial activity, prosperity and to increase the living standards of their citizens. As invention and creation of new technology remain overwhelmingly the province of developed countries, the developing and least developed countries find access to such latest and highly productive technology increasingly essentially and equally costly and cumbersome. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which requires the signatory States to implement a minimum level of protection for Intellectual Property Rights tends to benefit the developed world as the holders of majority of the patents on latest technological innovations and puts the developing countries at the receiving end as they are bound to implement an IPR protective regime wherein they are themselves no longer free to use newly developed technologies without a price. Notwithstanding such restrictions, the developing and least developed countries were persuaded to became a signatory to TRIPS agreement, as it was projected that strong or at least a standard IPR regime alone would facilitate investment, technology transfer, local innovation of technology and above all the development of these countries in a highly globalised world order wherein no country could afford to remain an island. Technological innovations and their exploitation are indispensable for development in the highly competitive world economy. It appears therefore that there is a conflict of interests between developed and developing (including least developed) countries. This conflicting situation has led to increased interests of academicians and researchers worldwide into the subject matter of transfer of technology under the TRIPS regime.

IV. TRIPS and Environmentally Sound Technology

It is interesting to find that TRIPS does not specifically deal with the treatment of climate change or environmentally sound technologies (ESTs). Developing countries have therefore sought protection under the TRIPS agreement on Public health grounds by invoking Article 31. It is generally believed therefore, that the least developing countries or the poorer nations would get access to ESTs through compulsory licensing by arguing that climate change represents a national health emergency. However, the scholars have strenuously argued that such arguments are not very appropriate as ESTs cannot be broadly compared with pharmaceutical products which are unique and whose therapeutic values are equally unique. In case of ESTs, there are always numerous alternatives and what can be achieved by one technology can equally be achieved by other measures. As a result such arguments of the developing or the least developing countries would not go a long way in facilitating access to ESTs.

It would not be inappropriate to say that TRIPS has no concrete agenda for ensuring and facilitating green technology transfer or transfer of ESTs. There are certain provisions in the TRIPS Agreement, however, which explicitly reflect some of the developing countries concerns about the issue. These provisions are discussed below.

Article 7 of the TRIPS Agreement provides:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Thus, Article 7 of the Agreement outlines the general principle of technology access which was an area of key concern for all, countries producing technological innovations as well as countries using such innovations. Article 8 is another such provision in the Agreement which has a direct bearing on the transfer of technology. This Article is reproduced below:

Article 8

Principles

1. Members may, in formulating or amending their laws and regulations adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

Thus Article 8.1 recognises and grants the Members freedom to take measures inter alia to promote the public interest in sectors of vital importance to their technological development. Article 8.2 recognises the need to adopt appropriate measures to prevent the resort to practices which adversely affect the international transfer of technology. There is one rider, however, that limits the ambit of possible measures that can be resorted to by the concerned members. This rider requires that the measures must be consistent with the provisions of the Agreement.Article 66 of the TRIPS Agreement calls for technology transfer from the developed countries to the least developing countries. However, it remains highly questionable and controversial whether TRIPS actually facilitates a fair balance between technology transfer and IPRs. Article 66 is reproduced below:

1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

2. Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

Thus, we see that Article 66.2 is couched in mandatory terms. The mandatory provision contained in Article 66.2 requires the developed country members to provide incentives to institutions and enterprises in their territories for the purpose of promoting and encouraging technology transfer to least developed country Members. However, the precise nature of the incentives is not clearly stipulated. Article 66.2 establishes a positive legal obligation does not merely make a suggestion.V. Significance of Technology Transfer to Climate Change MitigationThe issue of environmental preservation increasingly became a part of national and international political discourse once the harmful effects of industrial development were visible. United Nations Conference on the Human Environment (UNCHE)The politicization of the environmental issues culminated with the first major international environmental conference, namely the United Nations Conference on the Human Environment (UNCHE), 1972 in Stockholm. There were three major ramifications of the Stockholm convention: (1) the introduction and promotion of the concept of sustainable development; (2) the establishment of the United Nations Environmental Programme (UNEP) and (3) the conception that technology will prove vital for eco-friendly development. Thus, the leaders elucidated the virtues of the transfer of resources including capital, technology and scientific expertise from richer to poorer countries. Therefore, the significance of transfer of technology to the global cooperation on the environment was recognized from the very beginning. 1985 Vienna Convention and 1987 Montreal ProtocolIn order to diminish ozone layer depletion rate, the UNEP outlined a World Plan of Action in the year 1977. It was subsequently followed by a discussion in 1982 among 24 nations for an agreement on protecting ozone layer. The forum concluded in 1985 with the signing of the Vienna Convention on the Protection of the Ozone Layer, where a framework was developed to reduce the effects of industrial pollution on the ozone layer. Though, to a limited extent only, the Vienna Convention furthered the efforts for technology transfer by calling for the development and transfer of technology and knowledge. The convention specified mechanisms for technology transfer, including the facilitation of the acquisition of alternative technologies by other parties, provision of information on alternative technologies and equipment, supply of special manuals or guides to them, the supply of necessary equipment and facilities for research and systematic observations, and appropriate training of scientific and technical personnel.

Subsequently, in order to consolidate and further augment the momentum provided by the Vienna framework, the leaders reconvened in Montreal in 1987 to establish reduction requirements for the production and use of chlorofluorocarbons (CFCs). Consequent to that the Montreal Protocol was signed in September 1987 by the United States, European Community and 23 other nations which were mostly other CFC emitting countries. It is worth mentioning that the Montreal Protocol is considered the most successful international environmental agreement. The protocol was implemented fully in the year 1989. The protocol was amended in 1990 in London to establish the Multilateral Fund (MLF) in order to help signatory nations adhere to the Protocols regulations. During the period from 1991 to 2007, the MLF accumulated more than 2.2 billion dollar. At the time of its implementation, the MLF was the most comprehensive mechanism for facilitating technology transfer. Despite the establishment of MLF as a vehicle for financial and technological aid to developing countries, many developing nations were unfamiliar with climate change issue and concerns. 1992 Rio Convention and the Establishment of the UNFCCCIt is believed that the watershed for the promotion of technology transfer came in 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio De Janeiro, popularly known as the Rio Earth Summit. The Least Developed Countries wanted increased access to financial resources as well as the technical know-how as a compensation for sacrificing their economic growth for public and global environmental gain. By the Rio Earth Summit, the developing nations concerns became more manifest. Though, with a view to facilitate technology transfer to developing countries had come up for discussion during Montreal Protocol and its amendment in 1990 in London, most of the developing nations were unfamiliar with the uses and concerns. Hitherto, most of the organisations like Intergovernmental Panel on Climate Change (IPCC) and most climate change information hovered around the developed and industrialised world only. Technology transfer posed a greater point of contention than expecteddeveloping nations wanted financial and technological aid to protect themselves from risks posed by climate change. An accord was reached eventually, and the UNCED, through Agenda 21, established the United Nations Framework Convention on Climate Change (UNFCCC). Significant attention was paid to technology transfer in the texts of Agenda 21 and the UNFCCC framework proposal. Agenda 21 declares, the availability of scientific and technological information and access to and transfer of environmentally sound technology are essential requirements for sustainable development. The agreement further emphasised ensuring access, in particular of developing countries, to scientific and technological information and promoting endogenous capacity building.

It further provided through explicit provision, that technology transfer would be developed countrys responsibility:

The developed country Parties and other developed Parties included in Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties, particularly developing country Parties, to enable them to implement the provisions of the Convention. In this process, the developed country Parties shall support the development and enhancement of endogenous capacities and technologies of developing country Parties.

Out of all the provisions the most important provision of the UNFCCCs 1992 draft was its method of implementation. The Conference Parties were declared responsible parties for developing a financial mechanism for funding technology transfer projects.

Notwithstanding all this, technology transfer efforts have not been sufficient and effective enough to mitigate climate change. Failure of the Rio Convention in achieving concrete and successful measures severely hampered efforts to reduce emissions as a result of which the following decade witnessed rise in greenhouse gas emissions. Since 1995, the Conference of Parties continued to meet annually to negotiate the terms of the climate change agreement. Out of those annual conferences the most important one is famous as the Kyoto Protocol, the first agreement that set binding emissions targets for 37 industrialised nations and European Community. The protocol entered into force in 2005. An Expert Group of Technology Transfer (EGTT) was established as an expert group to analyse and identify ways to facilitate the transfer of technology.VI. ConclusionThere has never been any greater need for efficacious environmental policy intervention. As the global climate becomes increasingly unpredictable and violent, it is high time to take precautionary measures for preventing further damage. Under these circumstances technology transfer has emerged as an immensely significant issue particularly as far as the transfer of environmentally sound or green technology is concerned. Especially in the context of global warming and climate change, the effectiveness of the multilateral agreements and pursuant global efforts seeking prevention of further degradation of environment and climate change depends much upon the collaboration, coordination and cooperation amongst the developed and developing countries. It has rightly been appreciated that in order to sustain their accelerated growth and developments the developing countries need vast sources energy, market oriented policy, industrial establishment and many more. Major chunk of the rampant and ever increasing energy demand would not only put pressure on the resources but is likely to increase the concentration of the green house gases and other pollutants. Under these circumstances, it is no exaggeration to say that clean technology has already become very crucial for ensuring global energy security as well as for prevention of climate change. It is equally important that besides the technology transfer from the developed to the developing countries, the capacity building initiatives must also be carried on so that the dependence of the least developed and developing countries on the developed countries may end in the long run. As recent multilateral agreements have resolved to reduce global green house gas emissions, it is necessary that developing and least developed countries gain access to a multitude of environmentally sound technologies. The need of the hour is a comprehensive climate change agreement which amends the Intellectual Property related framework administering transfer of environmentally sound technology. Studies conducted so far reveal that none of the leading international institutions have appropriately dealt with the matter. It is important to adopt Public Private partnership model employing Technology Needs Assessments so that all nations would determine the appropriate technological needs for achieving a low-polluting economy. Developed countries must after procuring the technology at market price, facilitate the same at marginal cost to the developing and least developed countries. Arjya B. Majumdar, Debosmita Nandy et.al., Environment and Wildlife Laws in India 157 (Lexis Nexis, 2013).

Id. at 158.

Calestous Juma, Promoting International Transfer of Environmentally Sound Technologies: The Case for National Incentives Schemes in Helge Ole Bergesen and Georg Parmann (eds.), Green Globe Yearbook of International Co-operation on Environment and Development 137 (Oxford University Press, 1994). Also available at HYPERLINK "http://www.fni.no/ybiced/94_11_juma.pdf" http://www.fni.no/ybiced/94_11_juma.pdf (last visited on August 18, 2014).

S. Schmidheiny, Changing Course: A Global Business Perspective on Development and the Environment (MIT Press, London) quoted in Calestous Juma, Promoting International Transfer of Environmentally Sound Technologies: The Case for National Incentives Schemes in Helge Ole Bergesen and Georg Parmann (eds.), Green Globe Yearbook of International Co-operation on Environment and Development 138 (Oxford University Press, 1994). Also available at HYPERLINK "http://www.fni.no/ybiced/94_11_juma.pdf" http://www.fni.no/ybiced/94_11_juma.pdf (last visited on August 18, 2014).

Andrew Michaels, International Technology Transfer and Trips Article 66.2: Can Global Administrative Law Help Least-Developed Countries Get What They Bargained For? 41 Georgetown Journal of International Law 223 (2009).

Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 Apr. 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IC, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS, 33 I.L.M. 1197 (1994). Also available at, HYPERLINK "http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm" http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm (last visited on August 28, 2014).

Article 66.2 TRIPS Agreement states: Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

Charles Ebinger and Govinda Avasarala, Transferring Environmentally Sound Technologies in An Intellectual Property-Friendly Framework 12 (Energy Security Initiative) also available at HYPERLINK "http://www.brookings.edu/~/media/research/files/papers/2009/11/environmental%20technology%20ebinger/11_environmental_technology_ebinger.pdf" http://www.brookings.edu/~/media/research/files/papers/2009/11/environmental%20technology%20ebinger/11_environmental_technology_ebinger.pdf (last visited on August 19, 2014).

Ibid.

UNEP, 1985. Vienna, Austria. Vienna Convention on the Protection of the Ozone Layer Art 4.2. quoted in Charles Ebinger supra note 8.

Several climate change conferences and conventions took place after the creation of the Montreal Protocol, including a 1988 conference in Toronto, the 1989 Basel Convention, and the 1991 Convention in Espoo, Finland.

Daniel Bodansky, Prologue to the Climate Change Convention, in Irving M. Mintzer and J. Amber Leonard, Negotiating Climate Change: The Inside Story of the Rio Convention 59 (Cambridge University Press, 1994).

UNCED, 1992. Rio de Janeiro, Brazil, June 3-14. Agenda 21, Section 4, Chapter 34.7. United Nations, New York.

Ibid.

Global Environment Facility (GEF), established in 1991 under the auspices of the World Bank, was restructured during the Earth Summit and became a separate institution, assigned as the financial mechanism of the UNFCCC.

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