Abstract
Climate change is a phenomenon that affects humanity as a whole. One step in its solution is the development of technologies that allow us to adapt and mitigate its effects. However, most of these environmentally friendly technologies are protected by intellectual property rights, which, far from allowing their access, sometimes constitute an obstacle, fundamentally, for developing countries. In this sense, it is up to the States to dictate public policies that promote the research, development, dissemination, and transfer of these technologies through the use of the tools of the intellectual property system.
TopIntroduction
There is no doubt that one of the most pressing issues of recent times is the complex challenges posed by environmental protection, climate change, and the search for solutions to mitigate its effects in the short and medium term. Ban Ki-Moon, Secretary-General of the United Nations, asserts that climate change is one of the most complex, multifaceted, and serious threats facing the planet. The response to this threat is closely related to the pressing issues of sustainable development and global justice, the economy, poverty reduction, society, and the world we want to leave our children.
In 1992, the United Nations Framework Convention on Climate Change was approved in Rio de Janeiro; It established the general objectives and the institutional foundations for international efforts to combat climate change. Likewise, it was found that the development of technological and ecologically sound innovation is, to a large extent, one of the mechanisms to solve the problems we face. In the words of Francis Gurry, Director-General of the World Intellectual Property Organization:
The power of ingenuity is our best hope for restoring the delicate balance between ourselves and our environment. It is the only weapon we have to face this global challenge and the one that will allow us to move from the gray technologies of the past, based on carbon, to the green innovation of the future, without carbon dioxide emissions(Nagel, 2017).
In Chapter 34 of the United Nations Program of Action Rio, 1992, also known as Program 21, the definition of environmentally sound technologies is established, these “... protect the environment, are less polluting, sustainably use all resources, recycle more of their waste and products and treat residual waste more acceptably than the technologies it has come to replace. Section 34.3 of the same document states that “... environmentally sound technologies are not merely isolated technologies, but total systems that include technical knowledge, procedures, goods and services, and equipment, as well as organization and management procedures(Momtaz, 1996).”
Technological innovations that respect the environment are protected, in most cases, by utilizing Intellectual Property Rights. However, while on the one hand, the Intellectual Property system contributes to promoting the creation and diffusion of new technical advances, it can also become an obstacle to their acquisition, fundamentally for developing countries.
There is no doubt about the need for these technologies to be accessible to all. For this reason, it is essential not only to accelerate its transfer and dissemination but also to have financial resources, obtained through the promotion of investment, destined for its research, development, application, and dissemination. This position was taken into account in 2007, at the Bali Conference, when the Bali Action Plan was approved. In said plan, the countries were encouraged to intensify the work related to the development and transfer of technology to support measures to mitigate and adapt to climate change. In turn, the following measures were adopted:
- •
Remove barriers and create incentives to encourage the use of clean and affordable technologies;
- •
Accelerate the deployment, diffusion, and transfer of environmentally responsible technologies;
- •
Cooperate in research to obtain innovative technologies and examine the effectiveness of the mechanisms established at the level of technical cooperation.
Consequently, Intellectual Property Rights have been, in recent times, a controversial issue in the debate on the transfer and development of environmentally responsible technology. Fundamentally, regarding the most appropriate way to take advantage of this system or carry out the necessary reforms to develop and spread. However, “ensuring access to climate-friendly technologies, at affordable prices, is a crucial issue in international public policy, which affects economic, legal, geopolitical and security issues(Cullet, 2005).”
Key Terms in this Chapter
Prevention: The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Equity: Defined by UNEP to include intergenerational equity - “the right of future generations to enjoy a fair level of the common patrimony” - and intragenerational equity - “the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources” - environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for environmental remediation costs and compliance with pollution control regulations involve this principle.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle: To protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of complete scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment and prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the sovereign state’s rights. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.
Public Participation and Transparency: identified as necessary conditions for “accountable governments,... industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas,... a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.