On 27 February 2013, Ecuador submitted a paper (IP/C/W/585) to the World Trade Organization’s (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council) titled “Contribution of Intellectual Property to Facilitating the Transfer of Environmentally Rational Technology“. This subject was placed under agenda item 11 at the June TRIPS Council’s meeting under the heading of “Intellectual Property, Climate Change and Development”.
The objectives of the Ecuadorean document included the following:
a. reaffirmation of the existing flexibilities in the TRIPS Agreement so that Members use them in connection with ESTs, for example through a declaration addressing flexibilities in the TRIPS Agreement, climate change and access to ESTs;
b. initiation of a review of Article 31 of the TRIPS Agreement to determine which of its provisions may excessively restrict access to and dissemination of ESTs, and particularly its paragraph (f) and the need to include provisions on, as the case may be, the transfer of expertise or know-how to implement compulsory licences;
c. evaluation of the regulation of voluntary licensing and the conditions thereof from the standpoint of the most pressing needs of the most vulnerable developing countries in relation to adaptation to and mitigation of climate change;
d. recognition that adaptation to and/or mitigation of the harmful effects of climate change should be assimilated to the concept of “public interest”, with the adoption of a provision authorizing exemption from patentability, on a case-by-case basis, for inventions whose exploitation is vital for the diffusion of ESTs needed for adaptation and/or mitigation of climate change;
e. evaluation of Article 33 of the TRIPS Agreement to establish a special reduction in the term of protection for a patent of [X] years in order to facilitate free access to specific patented ESTs for adaptation and/or mitigation of the effects of climate change because of urgent need in the public interest; and
f. inclusion of a mechanism in the TRIPS Agreement to promote open and adaptable technology licensing for results obtained from research into climate change and ESTs financed through public funds.
In terms of next steps, the Ecuadorean proposal posited that the Bali Ministerial could consider adopting a Ministerial Declaration on IP and green technology in the same mold as the 2001 WTO Doha Declaration on the TRIPS Agreement and Public Health. The proposal stated:
23. Finally, in emulating these positive practices we could consider adopting at the Bali Ministerial Conference a declaration in which Members would enshrine the principle that “nothing in the TRIPS Agreement can minimize or impair the flexibilities provided for in that Agreement, nor prevent or limit Members taking measures they consider necessary to protect their population from the effects of climate change and to make use of “environmentally sound technologies”.
On 11 June 2013, India delivered the following statement on intellectual property, climate change and development. In its discussions on green technology, India highlighted recent multilateral discussions on public heath which sought to de-link the costs of R&D from the price of health products.
In this regard let me point out important contributions made by India viz WT/CTE/W/82 and TN/TE/W/79 to the discussions in the Committee on Trade and Environment as a part of the issues relating to market access. Through this contribution, India had highlighted the fact that although the TRIPS Agreement provides a good framework for protecting innovation including ESTs, they do create monopolies resulting in the high prices for the green technologies and act as barrier to their diffusion in the developing countries. India therefore proposed the need for reducing the patent duration for these technological innovations or to have a relook over the provisions of Art 31 so it does not become a barrier in issuing compulsory licenses in exceptional cases. It also talked of innovative mechanisms like Doha Declaration on Public Health or co-operative research and development to delink the cost of R&D so that there are no barriers in diffusion of these technologies.
This is India’s statement in full.
IP, Climate Change and Development
My delegation welcomes the inclusion of Agenda Item submitted by Ecuador on IP, Climate Change and development and also appreciates the submission made in this respect. We feel that the issue is of critical importance in reconciling the TRIPS Agreement with the demands made to implement Multilateral Environmental Agreements, mandatory national standards and voluntary international standards, where such implementation involves the use of Environmentally sound technologies and products covered by IPRs. Since we have not been able to analyse the proposal in detail, our comments would be preliminary.
Mr. Chairman, the central role of technology transfer to developing countries as well as the development of endogenous technology in these countries were recognised in the 1992 Rio Summit, as well as in its related conventions including the United Nations Framework Convention on Climate Change (UNFCCC). It was recognised that technology transfer had to be undertaken beyond the commercial arena, and that a pro-active role of public policy at national and international levels is required to enable developing countries get access to environmentally sound technologies and products. Although technological innovation is only part of the overall solution to climate change, it in fact an essential aspect of it. For moving towards a a green economy and to serve the objective of restricting global warming, it is necessary to overcome the dilemma between the need for widespread and rapid diffusion of knowledge and climate technologies to developing countries ; and the need for incentives for technological developments and innovations.
In this regard let me point out important contributions made by India viz WT/CTE/W/82 and TN/TE/W/79 to the discussions in the Committee on Trade and Environment as a part of the issues relating to market access. Through this contribution, India had highlighted the fact that although the TRIPS Agreement provides a good framework for protecting innovation including ESTs, they do create monopolies resulting in the high prices for the green technologies and act as barrier to their diffusion in the developing countries. India therefore proposed the need for reducing the patent duration for these technological innovations or to have a relook over the provisions of Art 31 so it does not become a barrier in issuing compulsory licenses in exceptional cases. It also talked of innovative mechanisms like Doha Declaration on Public Health or co-operative research and development to delink the cost of R&D so that there are no barriers in diffusion of these technologies.
Mr. Chairman, on any principle of equity, the industrialized countries have to bear a large share of the burden. They are historically responsible for the bulk of the accumulated GHG emissions and this alone suggests a greater responsibility. They also have high per capita incomes which give them the highest capacity to bear the burden. They are technically the most advanced, and to that extent best placed to provide environmentally sound technology to the developing countries at fair and favourable terms and conditions. Let me conclude by saying it’s high time that the global efforts towards a cleaner world do not get hindered because of the barriers posed by multilateral agreements like the TRIPS Agreement or by efforts be some Members to protect narrow commercial interests. We therefore welcome the contribution by Ecuador as a starting point for discussions and future solutions.