A healthy, sustainable environment is a prerequisite to any kind of human flourishing, though we don’t always behave like that’s the case. In this lesson, we’ll look at how environmental issues like the preservation of biodiversity or the prevention of climate change are influenced by global IP policies. The links between IP and the environment may not seem immediately obvious, but they exist. We’ll talk, for example, about how patents can facilitate or restrict the transfer of ecologically friendly technologies to developing countries. We’ll also evaluate strategies to deal with environmental damages caused by living modified organisms (LMOs). Toward the end of the lesson, we’ll begin to explore the issue of biopiracy of genetic resources, and examine access and benefit sharing mechanisms to ensure equitable treatment of the communities from which those resources come.
The first part of this lesson deals with “technology transfer,” specifically the transfer of environmentally sound technologies from developed to developing countries. What is the role of IP in that context? I think this article by the University of Alberta’s Cam Hutchinson provides a very useful introduction to key international legal regimes in the areas of climate change and intellectual property, and possible tensions that exist among them:
- Cameron Hutchinson,“Does TRIPS Facilitate or Impede Climate Change Technology Transfer into Developing Countries?‚ (2006) 3:2 University of Ottawa Law & Technology Journal 517-537.
You can see how representatives from international think tanks and NGOs are similarly characterizing the challenges facing society in this area by looking through the following reports (no need to read very word; glean what you can by reading the summaries and browsing the main text):
- Third World Network, Brief Note on Technology, IPR and Climate Change, Briefing Paper 2 (Third World Network, 23 February 2008).
- International Centre for Trade and Sustainable Development (ICTSD), Climate Change, Technology Transfer and Intellectual Property Rights: Background Paper, (ICTSD, August 2008).
- John Barton, “Intellectual Property and Access to Clean Energy Technologies in Developing Countries: An Analysis of Solar Photovoltaic, Biofuel and Wind Technologies,” ICTSD Programme on Trade and Environment ICTSD Issue Paper No. 2, (ICTSD, December 2007). It is probably more reasonable to ask you to just read the short version republished in WIPO Magazine, here, and/or the ICTSD’s summary, here.
- Copenhagen Economics and the IPR Company, “Are IPR a Barrier to the Transfer of Climate Change Technology?,” (European Commission, DG Trade, 19 January 2009). Just read the executive summary at pages 4-6, and skim the rest if you’re interested.
The second part of this lesson explores the relationship between IP and biodiversity, a term that captures the natural variety and patterns of life on Earth. The Convention on Biological Diversity is the dominant international legal and policy instrument we will study here. This is a good way to foreshadow future lessons in this course on biotechnology and indigenous knowledge. The issues of “access and benefit sharing” (or ABS for short) and “liability and redress” play a role in both contexts.
I can’t think of any better, more comprehensible introduction to the CBD than this book chapter, which is required reading:
- Susan Bragdon, Kathryn Garforth and John E. Haapala Jr., “Safeguarding Biodiversity: The Convention on Biological Diversity,” in Geoff Tansey and Tasmin Rajotte eds., The Future Control of Food: A Guide to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security (Earthscan/IDRC/QIAP, 2008) 82-114.
To delve into more detail about how the CBD’s provision on access and benefit sharing dovetail with similar provisions under the FAO’s “plant treaty” studied in the last lesson, please take a look (if you have time — Garforth’s first article listed above should be your priority) at:
- Kathryn Garforth and Christine Frison, “Key Issues for the relationship between the Convention on Biological Diversity & the International Treaty on Plant Genetic Resources for Food and Agriculture,” Quaker International Affairs Programme Occassional Paper No. 2 (Quaker, July 2007)
Never mind that last article. There’s enough on your plate for now. We’ll wait until the next lesson to tackle the complex impact of the CBD on the traditional knowledge and genetic resources of the world’s indigenous peoples.
Oh, also note that this lesson’s guest speaker (on Wednesday, March 3, 2010 at the usual class time of 9:30-11:30) will be Kathryn Garforth herself. This is going to be an excellent opportunity to hear directly from a representative of one of the international organizations we’re studying: the Convention on Biological Diversity Secretariat headquartered in Montreal.