Law report
IP Day 2009: Green innovation and technology transfer
Mohammad Monirul Azam
Intellectual Property Rights (IPRs) play an important role in the social, economic and cultural development of a society. Although now it is gaining lot of attention and importance in Bangladesh, public awareness in this regard is really missing. Realising the importance of IPR awareness, the World Intellectual Property Organisation (WIPO) celebrates World IP Day every year on 26th April. The celebration of IP day creates public understanding of what IP really means, and to demonstrate how the IP system fosters not only music, arts and entertainments, but also all the products and technological innovations that is shaping our world and making our life enjoyable and comfortable. World Intellectual Property Day was established by the WIPO in 2001 to "raise awareness of the role of intellectual property in our daily lives, and to celebrate the contribution made by innovators and artists to the development of societies across the globe". April 26 was chosen as this was the date on which the Convention establishing the World Intellectual Property Organization entered into force in 1970.
Thus the objectives of World IP Day are:
* to raise awareness of intellectual property rights in general and particularly how patents, copyright, trademarks and designs and other IPRs impact our days to day life;
* to increase understanding of influence of IP rights to promote creativity and innovation;
* to recognise the role of creativity and the contribution made by creators and innovators to the development of civilisation around the world and
* to encourage respect for the IP rights of others etc.
Each year, a message or theme is associated with the celebration of IP day:
* 2001 - Creating the Future Today
* 2002 - Encouraging Creativity
* 2003 - Make Intellectual Property Your Business
* 2004 - Encouraging Creativity
* 2005 - Think, Imagine, Create
* 2006- It Starts with an Idea
* 2007 - Encouraging Creativity
* 2008 - Celebrating innovation and promoting respect for intellectual property
The theme for 2009 is "Green Innovation". This theme is selected keeping in mind importance of the role of innovation and invention to reduce climate change.
Climate change and green innovation
Climate change is viewed as one of the most serious threats to the global environment and to sustainable development. Adverse impacts on human health, food security, infrastructure, economic activity, biological diversity and natural resources are expected. Most of the world's scientists agree that rising concentrations of greenhouse gases in the Earth's atmosphere emitted by human activities are leading to changes in the climate. The most recent assessment report of the Intergovernmental Panel on Climate Change (IPCC), completed in November 2007, finds with more than 90 percent certainty that human actions since the Industrial Revolution have contributed to the warming climate.
The response to this threat is fundamentally linked to pressing concerns of sustainable development and global fairness; of economy, poverty reduction and society; and of the world we want to hand down to our children. However, government representatives, environmentalists, lawyers, industry groups, development lobbyists, human rights activists and carbon traders, all were agreed on one thing: Innovation and new technologies will play a crucial role in meeting the challenge of global climate change. That is why, this year the theme 'green innovation' is selected to draw the attention of public regarding problem of climate change and the role of innovation to combat climate change. In fact this theme would like to remind us the importance of protection and encouragement for innovation and invention that may be useful for preventing the problems of climate change. As remarked by WIPO director General “the power of human ingenuity is our best hope for restoring the delicate balance between ourselves and our environment. It is our greatest asset in finding solutions to this global challenge, enabling us to move forward from the carbon-based, grey technologies of the past to the carbon-neutral, green innovation of the future”.
In the context of intellectual property and technology transfer the term 'green innovation' indicates technologies which:
*protect the environment;
*are less polluting;
*use all resources in a more sustainable manner;
*recycle more of their wastes and products; and
*handle residual wastes in a more acceptable manner than the technologies for which they are substitutes.
But most of the technologies which support environmentally sound objectives, championing preventative and green technology and practices are mostly owned by the developed countries. Although there is apparently no conflict between the climate change regime and the intellectual property system, the real question is how far IP system creates a regime that practically impedes or facilitates the flow of green technologies into developing countries.
It is argued by the most of the developing and least developed countries (LDCs) that IP system would like to protect the right of inventors only and it does not provide for any special treatment or flexibilities for access and dissemination of environmental sound technologies as occurs in the field of health or nutrition. In addition, the IP system has been associated with a series of limitations to access and dissemination of technologies in certain fields. The most important ones include: high transaction costs of obtaining information, negotiating and acquiring IP protected technologies and a lack of clarity in defining what is protected and what is not. Thus, these limitations enhance potential market failures related to asymmetric information.
IP rights confer to the holder a time-limited monopoly right to the development and commercialisation of the protected subject matter. This could well happen to climate change technologies. The rigidity of intellectual property rights (IPR) as to the long duration of protection, is also considered as barrier to collaborative technology development projects and technology transfer because 20-year protection period for patented technologies under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organisation (WTO) may make climate-friendly technologies obsolete by the time they are to be transferred to developing countries.
That is why there is an apprehension among the developing countries and LDCs that such property rights can serve as a barrier for introducing or upgrading technologies by private industry or public-sector agencies in developing countries or simply curb affordable access on account of high prices.
Therefore, while celebrating world IP day with the theme of green innovation keeping in mind importance of green technologies and their due protection, we should not forget that developing countries and LDCs also have a right to such technologies so that IP rights must not create an undue situation for them. We should not narrow our attention to profit maximising of IP rights rather their ultimate aim is to contribute to human development. In fact Global warming knows no boundaries. Factories and cars that release carbon dioxide into the air in the US or Germany cause potential harm not just to the citizens of those countries, but also to those of us who live in Africa or Asia. Therefore our motto of IP day should be not only to protect IP rights of green technologies but also to ensure access to such technologies for all around the world.
Concluding remarks
Given the tension between IP protection and the transfer of technology, a “balancing act” is necessary to ensure international IP rules advance broader public policy objectives. In fact, the exact role of IP in the transfer of climate-related technologies still remains unclear. IP is not mentioned expressly in the UN Framework Convention on Climate Change or Kyoto Protocol provisions on transfer of technology. It is an urgent necessity to create an "enabling environment" for transfer of technology, the establishment of the institutions, regulations and policies needed to promote technology transfer to combat climate change.
If climate change is indeed the most pressing challenge of our times, then policies including IP system have to be looked at through the fresh lens of addressing climate change, and made consistent with the aims and measures that we are trying to implement in combating climate change.
Thus ensuring access to environmentally sound technologies would be the ultimate objective for the World IP day celebration in Bangladesh. The Government of Bangladesh may also take initiatives under the joint cooperation of climate change cell and patent office to identify and reward the local green inventors and to encourage research and development for the creation of green technologies locally. On the eve of World IP day, let us commit ourselves to work for the creation of balanced intellectual property system to stimulate the creation, diffusion and application of green technologies and at the same time to ensure favorable access and flow of such technologies to the developing and least developed countries.
The writer is Assistant Professor at the Department of Law, University of Chittagong and Researcher on IP and International Trade.
