Environmental Technologies, Intellectual Property, and Climate Change (2013) edited by Abbe Brown
A Review by Matthew Rimmer
Abbe Brown (ed.), Environmental Technologies, Intellectual Property and Climate Change: Accessing, Obtaining, and Protecting, Cheltenham (UK) and Northampton (MA): Edward Elgar, 2013, 320 pp, Hardback 978 0 85793 417 8n, ebook isbn 978 0 85793 418 5n http://www.e-elgar.co.uk/bookentry_main.lasso?id=14451
Abbe Brown from the University of Aberdeen, Scotland, is one of the leading international researchers on intellectual property and climate change. She is an intellectual dynamo. Her work brings together a mastery of intellectual property, with a strong interest in innovation theory and practice, and an engagement with public policy issues surrounding human rights, competition policy, and access to knowledge. Abbe Brown has shown a particular aptitude for tackling big ideas and wicked global problems, with intelligence, gusto, insight, and formidable wisdom.
Her new collection — Environmental Technologies, Intellectual Property, and Climate Change — provides an engaging exploration and analysis of intellectual property, clean technologies, and climate change. Brown observes: ‘At the heart of this project lies the fact that technologies relevant or important (or essential?) to mitigation, adaptation and information may be the subject of IP; and if they are, the IP owner can control their use (2).’ Brown explains that an inter-disciplinary approach was a necessity given the wicked nature of the global problem of climate change: ‘Exploring climate change technologies, I wished to look at more legal fields, at the views of experts from different places and from professional practical, industry, policy-making and other scholarly fields, in particular, given the focus on climate change, from geography and geoscience (1).’ The collection is a cosmopolitan piece of work, showing a strong grasp of international relations, development, and human rights. There is a diversity of views in the collection on the appropriate settings in respect of intellectual property, clean technologies, and climate change. There is much debate amongst the contributors as to whether intellectual property plays a positive role in stimulating research and development in respect of clean technologies; or whether intellectual property creates artificial barriers to technology transfer for low-carbon technologies.
In the foreword to the book, Alan Boyle, a Professor of Public International Law at the University of Edinburgh, highlights the importance of the topic of intellectual property and climate change. He noted that ‘climate change represents one of the greatest challenges to international co-operation the United Nations has ever faced (x).’ Boyle highlights the intense debate surrounding the United Nations Framework Convention on Climate Change 1992 and subsequent international climate talks. He observed that there is a need for global effort to generate measures sufficient to restrain global temperature rises to 2 degrees Celsius (x).’ He stressed that ‘achieving this objective will depend in part upon the availability and sharing of appropriate technologies: wind power, carbon capture and storage, electric vehicles, solar energy, and many other technologies that facilitate the reduction of greenhouse gas emissions and promote energy efficiency (x).’ In this context, intellectual property law has a key role to play in both encouraging research, development, and deployment of clean technologies. Intellectual property law also has a significant role in enabling the diffusion and distribution of climate mitigation and climate adaptation measures — particularly to developing countries, least developed countries, small island states, and nations, particularly vulnerable to the impacts of global warming.
In Chapter 1, Keith Culver from the University of British Columbia highlights the need for public investment and private finance to promote a low carbon future. He maintains that ‘appropriate support is supplied by enabling countries in greatest need of climate technologies to access finance and technical know-how for implementation of integration suites of technologies and implementation practices — some existing and some new (29).’
In Chapter 2, Navraj Singh Ghaleigh from Edinburgh Law School explores the puzzling persistence of the relationship between intellectual property rights and climate change. Ghaleigh considers the push for India for ‘accelerated access to critical mitigation and adaptation technologies and related intellectual property rights’ in international climate talks (59). India has argued that ‘an effective and efficient global regime for accelerated access to intellectual property rights (IPRs) of critical climate friendly technologies is essential for the global efforts for development, development, dissemination and transfer of such technologies (59).’ Ghaleigh provides a critical evaluation of India’s position on intellectual property and climate change. He prefers the position of the European Union, and the International Centre for Trade and Sustainable Development in the international debate — namely that, intellectual property rights do not necessarily provide barriers to access to clean technologies.
In Chapter 3, Jon Santamauro — a lawyer, formerly of Sidley Austin LLP — comments: ‘While intellectual property is a critical component of the innovation cycle, it is not the only policy choice to be considered (101).’ He observes that there needs to be a range of other policy reforms to create an ‘enabling environment’ for technology transfer in both developed and developing countries. Jon Santamauro emphasizes that carbon pricing is an essential means of creating incentives for consumers and business to adopt new clean technologies. He also highlights regulatory measures — such as tax deductions and research and development incentives. Jon Santamauro also highlights the need for trade liberalization. He emphasizes the need for physical and human infrastructure to support the roll-out of clean technologies. Moreover, Jon Santamauro stresses the need for centres of excellence to address gaps in expertise in the scientific knowledge base. The role of technology institutions has been critically important.
The international climate talks have resulted in the establishment of the UNFCCC Climate Technology Centre and Network. This new institution is intended to encourage collaboration between the public sector and the private sector, developed countries and developing countries, on clean technologies. There has also been much debate over the establishment of the Green Climate Fund. There has been hope that the Green Climate Fund will help promote a ‘paradigm shift towards low-emission and climate-resilient development’. In addition, the World Intellectual Property Organization has established WIPO GREEN as a marketplace to facilitate transactions in respect of environmental technology and know-how.
In Chapter 4, Anna Davies from Trinity College, Dublin, considers empirical examples of collaborative ventures, which are adopting new approaches to developing, using, and disseminating environmental technologies. She offers an evaluation of the Eco-Patent Commons initiative. Anna Davies also considers collaborative innovation practices — such as open source innovation, crowd-sourcing, and innovation contests and climate change challenges. She particularly highlights the work of organizations, such as InnoCentive Inc. and Innovation Exchange Inc. Anna Davies also explores multi-partner initiatives, which are focused upon developing and implementing socio-technologies for humanitarian purposes. She highlights the work of Potential Energy — based in Berkeley, California — which was engaged in the Darfur Stoves Project. Anna Davies observes that ‘due to their niche spaces and unique collaborations across community, public and private sectors, the issue of protecting the intellectual property underpinning technological developments has not been a prominent feature of the cases detailed in this chapter’ (125). She emphasizes that ‘the focus has been on strategies for dissemination and up-scaling access to the technologies’ (125).
This study of social entrepreneurs is a thoughtful and stimulating contribution to the discussion about research, development, and diffusion of clean technologies. There has been increasing activity in the area by philanthropists — such as the Gates Foundation, and Bloomberg Philanthropies. The United States Patent and Trademark Office has been experimenting with the model of ‘Patents for Humanity’. There has been some debate over the efficacy of this scheme.
In Chapter 5, Elisa Morgera and Kati Kulovesi examines the use of public-private partnerships to enable wider and equitable access to climate technologies. The writers contend that ‘public-private partnerships have been experimented with for the purpose of developing and disseminating new technologies by creatively tackling IPR issues, and have the potential to facilitate the matching of technologies with local needs while addressing IPR issues and creating incentives for innovation (144).’ Morgera and Kulovesi comment upon special issues, which arise in the context of climate change:
Climate change-related questions of ensuring that developing countries ‘leap-frog’ and directly use green technologies in all economic sectors imply that the relevant private partners are much more difficult to identify and mobilize. Furthermore, in the climate change context, technologies will also be needed for adaptation, which also broadens the scope of the partnership and the range of possible partners (144).
This is a particularly useful study — as the Obama administration has favoured the model of public-private partnerships in a range of international negotiations on the environment and climate change. The scholar of intellectual property and development, Professor Margaret Chon from the Seattle University School of Law, has also been undertaking extensive work on the topic of public-private partnerships. The area will be an increasingly important topic.
In Chapter 6, Krishna Ravi Srinivas from the Research Information Systems in New Delhi, India, considers climate change, technology transfer, and intellectual property rights. He examines a number of options and solutions to enhance technology transfer. Srinivas considers the use of Article 66.2 of the TRIPS Agreement 1994 to promote technology transfer. He considers the use of ‘push’ and ‘pull’ mechanisms to incentivize both the development and transfer of technology. Srinivas examines possible procedural and substantial reforms in respect of patent law to better accommodate clean technologies. He argues: ‘In the long run, alternatives, including prizes, may prove to be more suited in some sectors and open-source/ open-innovation models can be used in such a way that while they use the patent system they enable us to overcome the limitations of the current IP regime.’ This suggestion has certainly come into focus, with Tesla Motors pledging to make its patents on electric vehicles available through open access licensing. Srinivas is also interested in South-South collaboration in technology development and transfer. There has certainly been increasing technology co-operation and collaboration between members of the BASIC group — such as Brazil, India, South Africa, and China. Srinivas also highlights the need to improve enabling environments for clean technology innovation and transfer.
In Chapter 7, Oche Onazi from the University of Dundee maintains that human rights should be prioritized to ensure access to essential environmental technologies — particularly for poor communities. He explores the relationship between legal theory, development, and human rights. Onazi contends that ‘human rights are important because of their strength and capability of speaking on behalf of the interests of poor communities’ (194). He contends that human rights can be a helpful means of understanding questions about access to clean technologies:
The use of human rights in relation to environmental technologies can be developed in a similar way, as this would ground all questions of access on basic human rights-based notions of justice and equality. Looked at this way, human rights would therefore serve as a sort of moral audit or benchmark for the objectives of enabling wide levels of access to environmental technologies, particularly amongst the poor. After all, questions of equitable access have important ethical implications, which make foundational values imperative to approaches regarding access to environmental technologies (194).
Onazi expressed concerns that the World Trade Organization would be insensitive to prioritize issues relating to climate change, human rights, development, and poverty. He contended that ‘poor and remote communities are more likely to benefit from differentiated approaches than collapsing their interests with corporate interest within the WTO agenda’ (194).
Onazi’s approach has since been strengthened by the Human Rights Council’s adoption of a Resolution on Human Rights and Climate Change in 2014. Amongst other things, the Resolution calls upon ‘all States to continue to enhance international dialogue and cooperation in relation to the adverse impacts of climate change on the enjoyment of human rights, including the right to development, particularly in developing countries, especially least developed countries, small island developing States and African countries, including through dialogue and measures, such as the implementation of practical steps to promote and facilitate capacity-building, financial resources and technology transfer, in accordance with the United Nations Framework Convention on Climate Change.’
Reflecting upon the Resolution, Mary Robinson — an United Nations Special Envoy on Climate Change — noted: ‘Climate change is, I believe, not just an issue of atmospheric science; is also about human rights’. She emphasized that ‘the current and future impacts of climate change undermine human rights, including the right to food, to health and water.’ Robinson affirmed: ‘We need to change the debate on climate change — to move beyond its construct as a scientific or environmental problem and to realise that it is in essence an issue of development and of rights’. She observed: ‘Taking a climate justice approach to climate change means you respect human rights. I particularly welcome the Human Rights Council’s reaffirmation that human rights principles and obligations can inform and strengthen policy making on climate change at all levels.’
In Chapter 8, Abbe Brown considers how best to achieve greater access to essential technologies required to combat climate change. She elaborates upon the debate over climate change and human rights:
More than one human right could arise in a climate change situation. There could be rights to life or to food in respect of wider access to a seed which would grow in drought ridden parts of rural Southern Europe (of interest to questions raised by Onazi and Tuncak), and rights to property and possible reward in respect of a patent or plant variety right which might exist in respect of it. Guidance exists from national courts and also from international bodies with regard to how to address conflict between human rights. At the heart of this is the need for balance and proportionality (205).
Brown advocates a combined approach, drawing upon the fields of intellectual property law, competition law, and human rights law. Brown suggests: ‘Human rights can ultimately identify the goal in mind; IP can encourage the development of technologies which can deliver this; and competition can provide a means of identifying if there is only one technology which can deliver the goal or if there is a relevant substitute’ (205).
In Chapter 9, Baskut Tuncat from the Center for International Environmental Law considers the relationship between intellectual property, food, and climate change. He worries that ‘current scientific predictions indicate that climate change will reduce food production, availability, and accessibility in vulnerable regions across the globe (224).’ Tuncat acknowledges: ‘Although developed countries are principally responsible for carbon emissions that have led to climate change, the primary effects will be felt in the developing world (224).’ Tuncat observes that climate change will have multiple impacts— including water shortages, crop devastation, soil erosion, biodiversity loss, and an exacerbation of stresses on fishery stocks. He comments that such predicted effects of climate change will have significant implications for the right to food.
Tuncat observes that ‘one of the greatest areas of concern for intellectual property (IP) impediments to climate change-related technologies is in the context of food (230).’ He highlights the range of issues in this field:
IP issues relevant to access to fold include the patentability of isolated genes, the use of genetic resources for plants and animals, plant variety protection and traditional knowledge. Particularly relevant in the context of IP and the right to food is the requirement that food be economically accessible. Negotiations to reform IP norms for food-related inputs and outputs implicates a small but powerful number of rights holders in developed countries, as well as a number of international fora and agreements (231).
There is a multiplicity of fora in which intellectual property and food are debated — including the World Trade Organization, the World Intellectual Property Organization, the International Union for the Protection of New Varieties of Plants (UPOV), the Food and Agriculture Organization, and the Convention on Biological Diversity 1992 and the Nagoya Protocol 2010.
Tuncat emphasizes the need to situate the debate in the larger context of climate justice and human rights:
Climate change implicates a host of human rights, the linkages of which are well recognized and articulated. Rising sea levels and the increasing frequency or severity of storms implicate the rights to life, health, adequate housing, to self-determination and development. Rising surface temperatures and projected increases in vector-borne diseases implicate the rights to health, food and life. Changes in precipitation patterns and the melting of glaciers implicate the right to water. Measures for the mitigation of climate change, in particular the use of forests as carbon sinks, could perversely affect the rights of local and indigenous communities. The rights of women and children are particularly vulnerable to the consequences of climate change in many countries. (227).
The Mary Robinson Climate Justice Foundation has been undertaking a significant amount of work on climate change and human rights — particularly focusing on hunger, nutrition, and food security.
In Chapter 10, James McLean from Balfour + Manson LLP explores the interaction between intellectual property and competition law in the context of clean technologies. He is particularly interested in the role of compulsory licensing in the European Union. McLean contends: ‘If access to particular intellectual property rights on fair and reasonable terms can be shown to be indispensable to the availability in a particular EEA state of energy from renewable sources; and if agreement cannot be reached…. then any EEA state… may establish the necessary compulsory licensing regime, which must include a basis for payment of fair compensation (262).’
In Chapter 11, Mervyn Jones — the Chairman from Aquamarine Power Ltd — provides a view of the debate over intellectual property and climate change from the perspective of the renewable energy industry. He suggests that ‘much of the challenge in rolling out renewable technologies is in the broader capabilities of a nation or region to make it happen’ (270). Jones contends that ‘much of the value in a renewable energy company is in know-how; much of what distinguishes the climate change-responsive nations from those that are not is having the capabilities and infrastructure to make it happen’ (270).
Chapter 12 considers the role that private institutional investment can play in the development of climate change technologies. David McGrory from Maclay Murray & Spens LLP argues: ‘If private sector investors are to play a significant role in bridging the environmental technology funding gap, it is essential that all parties get comfortable with the idea that the private sector needs to make a return on its investment (273).’ He considers the role of banks, public capital markets, government grants and awards, and venture capital.
Increasingly, the clean technology sector is in engaging in other alternatives means of creative financing of projects. In the Clean Disruption of Energy and Transportation, Tony Seba highlights the use of creative business models — such as participatory energy, and crowd-funding. He argues that creative financial innovation will be important to support the effective roll out of clean technologies — such as Solar PV, microgrids, and electric cars.
With this collection, Brown has made an important and timely contribution to the scholarly literature on intellectual property and climate change. She is one of a select group of leading researchers and scholars in the emerging field of intellectual property and climate change. Professor Estelle Derclaye from the University of Nottingham has undertaken a number of groundbreaking pieces of work on intellectual property and climate change in the European Union. Professor Tine Sommer from Aarhus University, Denmark, has explored the patenting of environmentally sound technologies. The International Centre for Trade and Sustainable Development — based in Geneva, Switzerland — has undertaken significant empirical work in respect of patent law and clean technologies.
Eric Lane from the Thomas Jefferson School of Law has written an excellent book, Clean Tech Intellectual Property, focusing upon practical matters of management and commercialisation of green patents, eco-labels, and other forms of intellectual property. Professor Peter Menell from the University of California, Berkeley, and the late, great Sarah Tran are the editors of the comprehensive, masterful collection on Intellectual Property, Innovation, and the Environment. Professor Joshua Sarnoff has considered the interface between intellectual property and innovation policy in his work on climate change. Professor Keith Maskus, Professor Ruth Okediji, Professor John Barton, and Professor Frederick Abbott have made important contributions to the study of international law, intellectual property, and climate change. Sangeeta Shashikant and Martin Khor have undertaken significant work on intellectual property, technology transfer, and climate change, with the Third World Network and the South Centre.
Brown’s new collection — Environmental Technologies, Intellectual Property, and Climate Change — belongs in the canon of key, essential texts on intellectual property and climate change.
Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, plain packaging of tobacco products, and Indigenous intellectual property. His work is archived at SSRN Abstracts and Bepress Selected Works.
Matthew Rimmer, ‘Environmental Technologies, Intellectual Property and Climate Change (2013) edited by Abbe Brown — a Review’, Medium, 24 July 2014, https://medium.com/@DrRimmer/8d39333c3de
Cover photo : Wind Power in Scotland, Bjmullan, Whitelee panorama CC BY-SA 3.0
