TRANSFER OF ENVIRONMENTALLY SOUND AND GREEN

TECHNOLOGY TO PREVENT CLIMATE CHANGE IN IPR

PROTECTIVE REGIME: A CRITICAL STUDY

BY

KISHAN KUMAR

List of Abbreviations

EGTT

Expert Group of Technology Transfer

EST

Environmentally Sound Technology

IPCC

Intergovernmental Panel on Climate Change

IPR

Intellectual Property Rights

LDCs

Least Developed Countries

MLF

Multilateral Fund

TRIPS

Trade Related Aspects of Intellectual Property Rights

UN

United Nations

UNCED

United Nations Conference on Environment and Development

UNCHE

United Nations Conference on the Human Environment

UNEP

United Nations Environment Programme

UNEP

United Nations Environmental Programme

UNFCCC

United Nations Framework Convention on Climate Change

WMO

World Meteorological Organization

WTO

World Trade Organisation

ii

Contents

List of Abbreviations..................................................................................................................ii
I.

Introduction.........................................................................................................................1

II. Climate Change a Real and Grave Threat.............................................................................1

III. Technology and Sustainable Development..........................................................................2
IV. TRIPS and Environmentally Sound Technology..................................................................5
V. Significance of Technology Transfer to Climate Change Mitigation....................................8
United Nations Conference on the Human Environment (UNCHE).....................................8
1985 Vienna Convention and 1987 Montreal Protocol..........................................................9
1992 Rio Convention and the Establishment of the UNFCCC............................................10
VI. Conclusion.........................................................................................................................12

iii

TRANSFER OF ENVIRONMENTALLY SOUND TECHNOLOGY TO

PREVENT CLIMATE CHANGE IN IPR PROTECTIVE REGIME: A
CRITICAL STUDY

I.

Introduction

The urgency of an effective and coordinated global response to meet the climate change
challenge has been well acknowledged in the recent years. It has increasingly been realised
that innovation and dissemination of Environmentally Sound Technologies are the need of the
hour to prevent further degradation of environment and to ensure sustainable development. A
perusal of the human history reveals that technology is the source of greenhouse gases
emissions culminating into the potential threat of climate change that looms over the human
civilization. In the recent years, there is a growing awareness that climate change is a major
threat to the prosperity, food security, economic activity, and international peace. It was in
light of the major threat of the climate change that in order to assess and provide the world
with a clear scientific view on the current state of knowledge in climate change and its
potential environmental and socio-economic impacts, an international body namely, the
Intergovernmental Panel on Climate Change (IPCC) was jointly established by the United
Nations Environment Programme (UNEP) and the World Meteorological Organization
(WMO) in 1988. The same was subsequently endorsed by the United Nations (UN) General
Assembly.

II. Climate Change a Real and Grave Threat

The main activity of IPCC is to provide at regular intervals Assessment Reports of the
state of knowledge on climate change. The latest report is that of Climate Change 2007. The
Fourth Assessment Report of 2007 has brought to light that climate change is a real and a
very grave problem and above all a man-made problem. On the basis of several scientific
studies and direct observations of change in temperature, sea level and snow cover in the
northern hemisphere during the period 1850-2007 the Fourth Assessment Report has
concluded that the Earths climate is slowly but steadily changing.1
Earths temperature depends on the balance between energy entering and leaving the
planets system which is a natural process in the form that solar energy is absorbed by the
Earths system and then by reflecting back that energy into the space the Planet cools and
avoids warming. However, when this natural process is disturbed the Earths energy balance
gets changed which depending upon the quantum of interference may result into anything
from disaster to catastrophe. Though, many factors including both natural and human are
responsible for causing change in Earths energy balance system. While the natural factors
are not easily amenable to human control the human activities must be checked to prevent
further degradation of the climate. According to the experts, increase in the atmospheric
concentration of the greenhouse gases and aerosols, solar radiation and ozone depletion lead
to global warming which in turn, affect the energy balance of the climate system, thereby
causing climate change.2

Arjya B. Majumdar, Debosmita Nandy et.al., Environment and Wildlife Laws in India 157 (Lexis Nexis, 2013).

Id. at 158.

III. Technology and Sustainable Development

It was commonly believed by the environmental activists of the 1960s that large scale
industrial development was to blame as the main source of environmental degradation.
Accordingly, scientific and technological developments and inventions came to be perceived
as real culprit for the environmental hazards. As a result, anti-technology attitude was
professed and propagated by the activists. It was subsequently due to some pioneer work in
the field that promoted the idea of alternative technology which changed the popular
perceptions of the activists.3
There is an increasing awakening to the fact that industrial development is not only
essential and indispensable for economic growth and development, but that the transition
away from the current dependence on basic agricultural production will require a shift
towards industrialisation and the related service sector activities. Technological innovation
which was perceived as a potential hazard and threat to the environment is now widely
accepted as offering new opportunities for reducing environmental degradation and
promoting sustainable development.4
The significance of technology transfer as the driving force for increased industrial
output, economic development and prosperity of the developing and least developed
countries, and enhanced living standard of their people remains axiomatic and needs no
theoretical elaboration. In the recent years, transfer of technology has become a much
3

Calestous Juma, Promoting International Transfer of Environmentally Sound Technologies: The Case for
National Incentives Schemes in Helge Ole Bergesen and Georg Parmann (eds.), Green Globe Yearbook of
International Co-operation on Environment and Development 137 (Oxford University Press, 1994). Also
available at http://www.fni.no/ybiced/94_11_juma.pdf (last visited on August 18, 2014).
4

S. Schmidheiny, Changing Course: A Global Business Perspective on Development and the Environment (MIT
Press, London) quoted in Calestous Juma, Promoting International Transfer of Environmentally Sound
Technologies: The Case for National Incentives Schemes in Helge Ole Bergesen and Georg Parmann (eds.),
Green Globe Yearbook of International Co-operation on Environment and Development 138 (Oxford University
Press, 1994). Also available at http://www.fni.no/ybiced/94_11_juma.pdf (last visited on August 18, 2014).

debated topic both at the national and international forums and has attracted the attention of a
large section of society. Especially, since the establishment of WTO in 1995, the objectives,
mode, technical and legal aspects of transfer of technology have emerged as areas of key
interest for academicians, universities, industries and lawyers worldwide. Not only
technologically most advanced nations but even the least developed countries (LDCs) on the
scale of technical assets, show keen interest in the subject. The developed countries want to
maintain their lead on the technology scale and therefore at international forums they
strenuously lobby and argue for global protection of their Intellectual Property Rights (IPRs).
The developing (including emerging industrialised) and least developed countries on the
other hand view access to advanced technology as the primary means to enhance their
economic and industrial activity, prosperity and to increase the living standards of their
citizens. As invention and creation of new technology remain overwhelmingly the province
of developed countries, the developing and least developed countries find access to such
latest and highly productive technology increasingly essentially and equally costly and
cumbersome. The Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS) which requires the signatory States to implement a minimum level of protection for
Intellectual Property Rights tends to benefit the developed world as the holders of majority of
the patents on latest technological innovations and puts the developing countries at the
receiving end as they are bound to implement an IPR protective regime wherein they are
themselves no longer free to use newly developed technologies without a price. 5
Notwithstanding such restrictions, the developing and least developed countries were
persuaded to became a signatory to TRIPS agreement, as it was projected that strong or at
least a standard IPR regime alone would facilitate investment, technology transfer, local
innovation of technology and above all the development of these countries in a highly
5

Andrew Michaels, International Technology Transfer and Trips Article 66.2: Can Global Administrative Law
Help Least-Developed Countries Get What They Bargained For? 41 Georgetown Journal of International Law
223 (2009).

globalised world order wherein no country could afford to remain an island. Technological
innovations and their exploitation are indispensable for development in the highly
competitive world economy. It appears therefore that there is a conflict of interests between
developed and developing (including least developed) countries. This conflicting situation
has led to increased interests of academicians and researchers worldwide into the subject
matter of transfer of technology under the TRIPS regime.

IV. TRIPS and Environmentally Sound Technology

It is interesting to find that TRIPS does not specifically deal with the treatment of
climate change or environmentally sound technologies (ESTs). Developing countries have
therefore sought protection under the TRIPS agreement on Public health grounds by invoking
Article 31. It is generally believed therefore, that the least developing countries or the poorer
nations would get access to ESTs through compulsory licensing by arguing that climate
change represents a national health emergency. However, the scholars have strenuously
argued that such arguments are not very appropriate as ESTs cannot be broadly compared
with pharmaceutical products which are unique and whose therapeutic values are equally
unique. In case of ESTs, there are always numerous alternatives and what can be achieved by
one technology can equally be achieved by other measures. As a result such arguments of the
developing or the least developing countries would not go a long way in facilitating access to
ESTs.
It would not be inappropriate to say that TRIPS has no concrete agenda for ensuring
and facilitating green technology transfer or transfer of ESTs. There are certain provisions in
the TRIPS Agreement, however, which explicitly reflect some of the developing countries
concerns about the issue. These provisions are discussed below.

Article 7 of the TRIPS Agreement provides:

The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers and users
of technological knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations.6
Thus, Article 7 of the Agreement outlines the general principle of technology access which
was an area of key concern for all, countries producing technological innovations as well as
countries using such innovations. Article 8 is another such provision in the Agreement which
has a direct bearing on the transfer of technology. This Article is reproduced below:
Article 8
Principles
1. Members may, in formulating or amending their laws and regulations adopt measures
necessary to protect public health and nutrition, and to promote the public interest in
sectors of vital importance to their socio-economic and technological development,
provided that such measures are consistent with the provisions of this Agreement.
2. Appropriate measures, provided that they are consistent with the provisions of this
Agreement, may be needed to prevent the abuse of intellectual property rights by right
holders or the resort to practices which unreasonably restrain trade or adversely affect
the international transfer of technology.
Thus Article 8.1 recognises and grants the Members freedom to take measures inter alia to
promote the public interest in sectors of vital importance to their technological development.
6

Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 Apr. 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex IC, THE LEGAL TEXTS: THE RESULTS OF THE
URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS, 33 I.L.M. 1197 (1994). Also available
at, http://www.wto.org/english/tratop_e/trips_e/t_agm2_e.htm (last visited on August 28, 2014).

Article 8.2 recognises the need to adopt appropriate measures to prevent the resort to
practices which adversely affect the international transfer of technology. There is one rider,
however, that limits the ambit of possible measures that can be resorted to by the concerned
members. This rider requires that the measures must be consistent with the provisions of the
Agreement.
Article 66 of the TRIPS Agreement calls for technology transfer from the developed
countries to the least developing countries. However, it remains highly questionable and
controversial whether TRIPS actually facilitates a fair balance between technology transfer
and IPRs. Article 66 is reproduced below:
1. In view of the special needs and requirements of least-developed country Members,
their economic, financial and administrative constraints, and their need for flexibility
to create a viable technological base, such Members shall not be required to apply the
provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years
from the date of application as defined under paragraph 1 of Article 65. The Council
for TRIPS shall, upon duly motivated request by a least-developed country Member,
accord extensions of this period.
2. Developed country Members shall provide incentives to enterprises and institutions in
their territories for the purpose of promoting and encouraging technology transfer to
least-developed country Members in order to enable them to create a sound and viable
technological base.
Thus, we see that Article 66.2 is couched in mandatory terms. The mandatory provision
contained in Article 66.2 requires the developed country members to provide incentives to
institutions and enterprises in their territories for the purpose of promoting and encouraging

technology transfer to least developed country Members. 7 However, the precise nature of the
incentives is not clearly stipulated. Article 66.2 establishes a positive legal obligation does
not merely make a suggestion.

V. Significance of Technology Transfer to Climate Change Mitigation

The issue of environmental preservation increasingly became a part of national and
international political discourse once the harmful effects of industrial development were
visible.
United Nations Conference on the Human Environment (UNCHE)

The politicization of the environmental issues culminated with the first major
international environmental conference, namely the United Nations Conference on the
Human Environment (UNCHE), 1972 in Stockholm. There were three major ramifications of
the Stockholm convention: (1) the introduction and promotion of the concept of sustainable
development; (2) the establishment of the United Nations Environmental Programme (UNEP)
and (3) the conception that technology will prove vital for eco-friendly development.
Thus, the leaders elucidated the virtues of the transfer of resources including capital,
technology and scientific expertise from richer to poorer countries. Therefore, the
significance of transfer of technology to the global cooperation on the environment was
recognized from the very beginning.
1985 Vienna Convention and 1987 Montreal Protocol

Article 66.2 TRIPS Agreement states: Developed country Members shall provide incentives to enterprises and
institutions in their territories for the purpose of promoting and encouraging technology transfer to leastdeveloped country Members in order to enable them to create a sound and viable technological base.

In order to diminish ozone layer depletion rate, the UNEP outlined a World Plan of
Action in the year 1977. It was subsequently followed by a discussion in 1982 among 24
nations for an agreement on protecting ozone layer. The forum concluded in 1985 with the
signing of the Vienna Convention on the Protection of the Ozone Layer, where a framework
was developed to reduce the effects of industrial pollution on the ozone layer.8 Though, to a
limited extent only, the Vienna Convention furthered the efforts for technology transfer by
calling for the development and transfer of technology and knowledge. 9 The convention
specified mechanisms for technology transfer, including the facilitation of the acquisition of
alternative technologies by other parties, provision of information on alternative technologies
and equipment, supply of special manuals or guides to them, the supply of necessary
equipment and facilities for research and systematic observations, and appropriate training of
scientific and technical personnel.10
Subsequently, in order to consolidate and further augment the momentum provided by
the Vienna framework, the leaders reconvened in Montreal in 1987 to establish reduction
requirements for the production and use of chlorofluorocarbons (CFCs). Consequent to that
the Montreal Protocol was signed in September 1987 by the United States, European
Community and 23 other nations which were mostly other CFC emitting countries. It is worth
mentioning that the Montreal Protocol is considered the most successful international
environmental agreement. The protocol was implemented fully in the year 1989. The protocol
was amended in 1990 in London to establish the Multilateral Fund (MLF) in order to help
signatory nations adhere to the Protocols regulations. During the period from 1991 to 2007,
8

Charles Ebinger and Govinda Avasarala, Transferring Environmentally Sound Technologies in An Intellectual
Property-Friendly Framework 12 (Energy Security Initiative) also available at
http://www.brookings.edu/~/media/research/files/papers/2009/11/environmental%20technology
%20ebinger/11_environmental_technology_ebinger.pdf (last visited on August 19, 2014).
9

Ibid.

10

UNEP, 1985. Vienna, Austria. Vienna Convention on the Protection of the Ozone Layer Art 4.2. quoted in
Charles Ebinger supra note 8.

the MLF accumulated more than 2.2 billion dollar. At the time of its implementation, the
MLF was the most comprehensive mechanism for facilitating technology transfer. Despite the
establishment of MLF as a vehicle for financial and technological aid to developing
countries, many developing nations were unfamiliar with climate change issue and concerns.
1992 Rio Convention and the Establishment of the UNFCCC

It is believed that the watershed for the promotion of technology transfer came in
1992, at the United Nations Conference on Environment and Development (UNCED) in Rio
De Janeiro, popularly known as the Rio Earth Summit. 11 The Least Developed Countries
wanted increased access to financial resources as well as the technical know-how as a
compensation for sacrificing their economic growth for public and global environmental
gain.12 By the Rio Earth Summit, the developing nations concerns became more manifest.
Though, with a view to facilitate technology transfer to developing countries had come up
for discussion during Montreal Protocol and its amendment in 1990 in London, most of the
developing nations were unfamiliar with the uses and concerns. Hitherto, most of the
organisations like Intergovernmental Panel on Climate Change (IPCC) and most climate
change information hovered around the developed and industrialised world only. Technology
transfer posed a greater point of contention than expecteddeveloping nations wanted
financial and technological aid to protect themselves from risks posed by climate change. An
accord was reached eventually, and the UNCED, through Agenda 21, established the United
Nations Framework Convention on Climate Change (UNFCCC).

11

Several climate change conferences and conventions took place after the creation of the Montreal Protocol,
including a 1988 conference in Toronto, the 1989 Basel Convention, and the 1991 Convention in Espoo,
Finland.
12

Daniel Bodansky, Prologue to the Climate Change Convention, in Irving M. Mintzer and J. Amber Leonard,
Negotiating Climate Change: The Inside Story of the Rio Convention 59 (Cambridge University Press, 1994).

10

Significant attention was paid to technology transfer in the texts of Agenda 21 and the
UNFCCC framework proposal. Agenda 21 declares, the availability of scientific and
technological information and access to and transfer of environmentally sound technology are
essential requirements for sustainable development. The agreement further emphasised
ensuring access, in particular of developing countries, to scientific and technological
information and promoting endogenous capacity building.13
It further provided through explicit provision, that technology transfer would be
developed countrys responsibility:
The developed country Parties and other developed Parties included in Annex
II shall take all practicable steps to promote, facilitate and finance, as
appropriate, the transfer of, or access to, environmentally sound technologies
and know-how to other Parties, particularly developing country Parties, to
enable them to implement the provisions of the Convention. In this process,
the developed country Parties shall support the development and enhancement
of endogenous capacities and technologies of developing country Parties.14
Out of all the provisions the most important provision of the UNFCCCs 1992 draft was its
method of implementation. The Conference Parties were declared responsible parties for
developing a financial mechanism for funding technology transfer projects.15
Notwithstanding all this, technology transfer efforts have not been sufficient and
effective enough to mitigate climate change. Failure of the Rio Convention in achieving
13

UNCED, 1992. Rio de Janeiro, Brazil, June 3-14. Agenda 21, Section 4, Chapter 34.7. United Nations, New
York.
14

Ibid.

15

Global Environment Facility (GEF), established in 1991 under the auspices of the World Bank, was
restructured during the Earth Summit and became a separate institution, assigned as the financial mechanism of
the UNFCCC.

11

concrete and successful measures severely hampered efforts to reduce emissions as a result of
which the following decade witnessed rise in greenhouse gas emissions. Since 1995, the
Conference of Parties continued to meet annually to negotiate the terms of the climate change
agreement. Out of those annual conferences the most important one is famous as the Kyoto
Protocol, the first agreement that set binding emissions targets for 37 industrialised nations
and European Community. The protocol entered into force in 2005. An Expert Group of
Technology Transfer (EGTT) was established as an expert group to analyse and identify ways
to facilitate the transfer of technology.

VI. Conclusion
There has never been any greater need for efficacious environmental policy intervention. As
the global climate becomes increasingly unpredictable and violent, it is high time to take
precautionary measures for preventing further damage. Under these circumstances
technology transfer has emerged as an immensely significant issue particularly as far as the
transfer of environmentally sound or green technology is concerned. Especially in the context
of global warming and climate change, the effectiveness of the multilateral agreements and
pursuant global efforts seeking prevention of further degradation of environment and climate
change depends much upon the collaboration, coordination and cooperation amongst the
developed and developing countries. It has rightly been appreciated that in order to sustain
their accelerated growth and developments the developing countries need vast sources
energy, market oriented policy, industrial establishment and many more. Major chunk of the
rampant and ever increasing energy demand would not only put pressure on the resources but
is likely to increase the concentration of the green house gases and other pollutants. Under
these circumstances, it is no exaggeration to say that clean technology has already become
very crucial for ensuring global energy security as well as for prevention of climate change. It
is equally important that besides the technology transfer from the developed to the
12

developing countries, the capacity building initiatives must also be carried on so that the
dependence of the least developed and developing countries on the developed countries may
end in the long run.
As recent multilateral agreements have resolved to reduce global green house gas emissions,
it is necessary that developing and least developed countries gain access to a multitude of
environmentally sound technologies. The need of the hour is a comprehensive climate change
agreement which amends the Intellectual Property related framework administering transfer
of environmentally sound technology. Studies conducted so far reveal that none of the leading
international institutions have appropriately dealt with the matter. It is important to adopt
Public Private partnership model employing Technology Needs Assessments so that all
nations would determine the appropriate technological needs for achieving a low-polluting
economy. Developed countries must after procuring the technology at market price, facilitate
the same at marginal cost to the developing and least developed countries.

13