Ahmed Abdel Latif ICTSD Geneva Roundtable on Climate Change

1. From Bali to Cancun: the debate on technology transfer and IPRs in the climate change negotiations Ahmed Abdel LatifICTSD Geneva Roundtable on Climate Change Technology Transfer and Intellectual Property Rights 13th July 2010

2. Enhanced transfer of climate friendly technologies :A key element of a global climate change deal With targets for CO2 emissions reductions and financing, enhancedtechnology transfer is one of the key issues under discussion in the climate change negotiations. Emerging agreement on the establishment of a ‘Technology Mechanism’ under the United Nations Framework Convention on Climate Change (UNFCCC). Disagreements on the role of intellectual property rights are part of this overall discussion on how to accelerate diffusion of clean technologies, particularly to developing countries.

3. Provisions on Technology Transfer in the UNFCCC (1) Article 4.5 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. Other Parties and organizations in a position to do so may also assist in facilitating the transfer of such technologies.

4. Provisions on Technology Transfer in the UNFCCC (2) Article 4.7 The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.

5. Technology Transfer in the Kyoto Protocol Article 10 (c) Cooperate in the promotion of effective modalities for the development, application and diffusion of, and take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies, know-how, practices and processes pertinent to climate change, in particular to developing countries, including the formulation of policies and programs for the effective transfer of environmentally sound technologies that are publicly owned or in the public domain and the creation of an enabling environment for the private sector, to promote and enhance the transfer of, and access to, environmentally sound technologies

6. Challenges towards Implementing Art. 4.5 (1994-2007) Definition of technology transfer and how to implement Art.4.5 In 2002, COP 7 adopted a framework for meaningful actions to effectively implement Art 4.5 : Technology Needs Assessments Technology Information Enabling Environments Capacity building An Expert Group on Technology Transfer (EGTT) was established.

7. The Bali Action Plan and technology transfer (2007) The Bali Action Plan called for “enhanced action on technology development and transfer to support action on mitigation and adaptation, including, inter alia, consideration of: (i) Effective mechanisms and enhanced means for the removal of obstacles to, and provision of financial and other incentives for, scaling up of the development and technology to developing country Parties in order to promote access to affordable environmentally sound technologies (EST);

8. Climate change discussions since Bali (1)

9. Climate change discussions since Bali (2) A diversity of proposals. Technology transfer or technology diffusion? The role of innovation in the development of clean technologies

10. Emerging Consensus on a Technology Mechanism “Establish a Technology Mechanismpursuant to the provisions on enhanced action on technology development and transfer in support of action on adaptation and mitigation which will be guided by a country-driven approach and be based on national circumstances and priorities.” (FCCC/AWGLCA/2010/8, 9th July 2010) “We decide to establish a Technology Mechanism to accelerate technology development and transfer which will be guided by a country-driven approach and be based on national circumstances and priorities.” Copenhagen Accord

11. Structure of Technology Mechanism

12. Main functions under the Technology Mechanism Increased R&D cooperation International and National Technology Action Plans Creation of a network of regional technology innovation centers Strengthening of national innovation systems Capacity Building Develop Partnerships

13. Scaling up joint R&D? • Widely shared and recurrent policy option. But why is it not done more ? And how can it be scaled up? • Overall, there is little joint R&D in the areas of climate change technologies, even between OECD countries. • Focus tends to be on “pre-competitive” stage of technology development. • In some countries, universities are not allowed to license technology funded by their national government to foreign firms.

14. The Technology Transfer and IPRs debate • Discussions on the role of IPRs in the transfer of clean technologies have been controversial. • Disagreements focus on whether IPRs are a barrier to the transfer of clean technologies or an essential pre-requisite to promote innovation, technology development and transfer. • Discussions have been confined to general statements and lacked solid empirical basis. • Language on IPRs remains bracketed in the negotiating text. Some countries would favor no language at all on IPRs. • However, this is not an entirely new debate (Chapter 34 of Agenda 21, Rio Summit 1992).

15. Options in the negotiations on Transfer of Technology and IPRs • Negotiating text reflects a wide range of views and proposals: → No mention of IPRs → Global Technology Intellectual Property Rights Pool for Climate Change to promote access to IP protected technologies and the associated know-how to developing countries on non-exclusive royalty-free terms → Ensure sharing of publicly funded technologies including by making the technologies and know-how available in the public domain in a manner that promotes transfer to DC on royalty-free terms → Right of developing countries to use to the full TRIPS flexibilities including compulsory licensing → Exclude from IPRs protection, and revoke any such existing IPR protection in developing countries and least developed countries on environmentally sound technologies to adapt to and mitigate climate change

16. What is needed?Deconstructing the Role of IPRs in Technology Transfer • TT is a complex and multidimensional process contingent on many factors (finance, local absorptive capacity, enabling environment). • TT involves knowledge which is embodied not only in IPRs such as patents but also in blueprints, designs, know-how and trade secrets. • IPRs are important to promote innovation. By offering protection against a loss of control of information in technology-related transactions, IPRs facilitate the transfer of technology. • IPRs have also an impact on cost of technology acquisition and rate of technology diffusion. Licensingconditions play a key role. • Role of IPRs varies according to technology and sector. IP issues raised in the context of mitigation technologies are different from those in the context of adaptation.

17. Capitalizing on previous research on TT and IPRs • Since early on, ICTSD sought to promote a better understanding of issues relating to transfer of technology and IPRs in order to advance international processes in this area, in particular through evidenced based policy oriented research. ● Examples of recent publications on technology transfer include: ▪ Technology transfer in the TRIPS age: the need for new types of partnerships between the least developed and most advanced economies, by Dominique Foray, EPFL, 2009. ▪ New Trends in Technology Transfer, By John H. Barton George E. Osborne Professor Emeritus Stanford Law School, Issue Paper 18, IP and Sustainable Development Series, 2007. ▪ Encouraging International Technology Transfer, by Keith Maskus, Professor of Economics, University of Colorado at Boulder, Issue Paper No. 7, IP and Sustainable Development Series, 2004. ▪ Nutrition and Technology Transfer Policies, by John H. Barton, George E. Osborne Professor Emeritus Stanford Law School Issue Paper No. 6, IP and Sustainable Development Series, 2004.

18. How to respond?

19. Policy Research (I) 1) Drawing lessons from other policy debates involving IPRs, such as public health: →Innovation and technology transfer to address climate change: lessons from the global debate on IP and Public Health,by Frederick Abbott, Issue Paper, No.24, June 2009. 2) Drawing lessons from other technology transfer models: →Fostering the development and diffusion of technologies for climate change: lessons from the CGIAR Model, by Carlos. Correa, Policy Brief No.6, December 2009. 3) Analyzing some of the proposals in the negotiations from a practical perspective: →Access to climate change technology by developing countries: a practical strategy,by Cynthia Cannady, Issue Paper No. 25, September 2009. 4) Identifying issues and challenges for LDCs: →Technologies for Climate Change and Intellectual Property: Issues for Small Developing Countries,Information Note No. 12, October 2009.

20. Empirical Evidence (II) • Empirical evidence on transfer of climate change technologies and IPRs is limited and recent. • Study by John Barton for ICTSD in 2007: IP and Access to Clean Energy Technologies in Developing Countries. An Analysis of Solar Photovoltaic, Biofuel and Wind Technologies. • The UNEP-EPO-ICTSD Project on Patents and Clean Energy is based on the premise that the scale of the challenge is such that only a broadly based partnership can succeed. The project was announced in April 2009.

21. Conclusion • The urgency of addressing the climate change challenge could present us with a unique opportunity to re-energize and move the decades-old discussion on technology transfer beyond entrenched beliefs and well known positions.. • This calls for innovative approaches and creative solutions to address unresolved issues, including IPRs, with a view to accelerate the transfer of climate change technologies to developing countries. • Viability of new international architecture on TT for climate change contingent on levels of financing.

22. Thank you www.ictsd.org aabdellatif@ictsd.ch