Compulsory licensing of clean technologies will only be needed if developed countries duck UNFCCC obligations, says Dalindyebo Shabalala.
Developing countries will need 'clean technologies', such as micro-wind energy, if they are to play an active role in combating climate change over the coming decades. The question is how to access these? The answer lies in genuine cooperative technology transfer between the developed and developing world.
Compulsory licensing, where governments allow manufacturers to produce patent-protected goods for domestic use without the patent owner's consent (sometimes with payment),is one option. It has worked well for medicine, though developing nations have had to fight hard to access some key drugs. And some countries, including Thailand, have suffered severe political penalties, such as threats to remove or suspend trade preferences.
Many in the climate change debate argue for new and more flexible compulsory licences for clean technologies, especially given potential demand in developing countries and the short time frame for action.
A last resort?
Individual countries could unilaterally use existing World Trade Organization rules for compulsory licences to access key clean technologies. But that — and any new licensing system — should only be needed if industrialised nations fail to meet their technology transfer and financing commitments under the UN Framework Convention for Climate Change (UNFCCC).
Some proponents of newcompulsory licensing for climate-related technologies have misunderstood key differences between the access to medicines debate (under the TRIPS Agreement) and technology transfer, under the UNFCCC.
Whereas TRIPS contains just one relatively weak commitment to technology transfer that only refers to least developing countries, the UNFCCC addresses it extensively, giving clear guidelines, especially on financing, for developed and developing countries.
And there are other factors that compulsory licences may not resolve. For example, for many climate technologies, such as micro-hydroelectric, wind and solar, the major cost may not be the intellectual property (IP), but the actual hardware and maintenance.
More than access to the actual technologies, developing countries need access to the skills, know-how and capital that can help them use, reproduce and adapt clean technologies. Compulsory licences — except those granted for competition reasons — may not transfer this tacit knowledge, which is often protected by trade secrets.
Under the UNFCCC, industrialised countries are committed to providing and financing technology transfer, regardless of patents. They are obliged to make available funds and mechanisms to ensure access, distribution and uptake of environmentally sound climate-related technologies in developing countries. For example, the Montreal Protocol — an international treaty to protect the ozone layer — pays for licensing fees at reasonable costs. Countries remain free to exercise compulsory licences when companies refuse to license their products.
The Montreal Protocol — and the UNFCCC — also account for IP market failures, where patented goods or knowledge become unaffordable for most relevant consumers. Under them, developed countries guarantee to transfer technologies, including paying for licences, if the technology in question exists and is unavailable in the national market at an affordable cost.
Unlike compulsory licensing, this commitment represents a cooperative approach. Only if this fails will developing countries, left to their own devices, have to resort to unilateral measures.
Those engaged in the current UNFCCC negotiations are well aware that agreeing a workable mechanism for technology transfer is essential. It is crucial for strategies to successfully combat climate change after 2012 (when the first commitment period of the Kyoto Protocol ends).
Lessons from Montreal
The Montreal Protocol shows technology transfer can be successfully addressed. What is needed is a fully funded financing mechanism that pays the full costs of accessing technologies, especially patent licences and accompanying services. And there must be a fair mechanism for managing intellectual property barriers, such as refusals to license, unreasonably high licensing costs, restrictive licensing practices, and other issues.
Developing countries at the UNFCCC are proposing a Technology Cooperation Mechanism that draws on experiences of the Montreal Protocol. Developed countries, who have not yet proposed any mechanisms themselves, need to acknowledge the success of experiences such as the Montreal Protocol and actively join with developing countries in seeking a cooperative and good faith solution. Only then can developing countries begin to effectively take on the challenge of reducing greenhouse gas emissions and adapting to climate change.
In the meantime, developing countries will continue to use compulsory licensing as a bargaining chip.
But we should all hope that unilateral measures remain nothing more than that. If developing countries have to resort to large-scale compulsory licensing to acquire climate-related technologies, it will signify a fundamental breakdown in the global climate policy regime. Developing countries will have been left on their own to sink or swim in a deluge of someone else's making.
Dalindyebo Shabalala is director of the Intellectual Property and Sustainable Development Project at the Center for International Environmental Law (CIEL). The views expressed in this piece do not necessarily reflect the views of CIEL or its funders.