Frederick Abbott and Ahmed Abdel Latif both contributed well thought-out essays to Round One. Abdel Latif focused on the notion that discussions about intellectual property rights and climate change must be "structured and incremental." Abbott emphasized "middle paths" that might "allow poorer countries to gain access to alternative energy resources and mitigation technologies without resorting to compulsory licenses." But despite the two authors' measured approaches, their essays together underscore the reality that intellectual property rights are a problem for developing countries seeking to gain access to low-carbon energy technologies.
As mentioned by Abdel Latif, the problem was recognized a long time ago—in Agenda 21, a blueprint for sustainable development adopted at the first Earth Summit in 1992. But in 1994, as one result of wide-ranging trade negotiations, developed countries succeeded in imposing on developing nations an international treaty (the Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS) that stipulates minimum standards for the protection of intellectual property—including an obligation to grant patents in all fields of technology. Two years later, the government of India proposed substantial changes to that treaty in order to foster the transfer of environmentally sound technologies. More recently, Ecuador has suggested exempting from patent protection, on a case-by-case basis, inventions whose diffusion could be vital for climate adaptation and mitigation. Ecuador has also proposed that, in certain situations, patent terms for such inventions be reduced. No concrete action has been taken at the World Trade Organization to address the concerns that underpin these proposals.
Developing countries have also raised intellectual property rights in negotiations conducted under the UN Framework Convention on Climate Change, in particular at the 2010 climate conference in Cancún, Mexico. Developed countries, however, have strenuously resisted all proposals that allude to such rights. This holds true even for neutral references to the right, explicit in the TRIPS agreement, to make use of "flexibilities" such as compulsory licensing. Abbott correctly notes that all countries have the right to override patents through compulsory licenses when needed. But developed countries are very reluctant to admit this.
It's not constructive for developed countries to exhibit such unwillingness to address in international fora (whether the World Trade Organization or the UN Framework Convention) issues related to intellectual property and climate change. The message their unwillingness sends is that the status quo in relation to intellectual property is not debatable and that the legitimate concerns of developing countries are not even worthy of discussion. Essentially, developed nations deny that a problem exists. But a problem does exist—insofar as the system of private appropriation of innovations may delay for 20 years (the normal duration of a patent) the introduction of new technologies into developing countries (the majority of the world).
Climate change is one of the greatest challenges that humanity has faced and addressing it requires building a long-term vision grounded in equity and solidarity. A responsible international community cannot simply avoid the problems that surround intellectual property rights and climate change; rather, nations should encourage a serious discussion of these issues and make sure to involve all stakeholders, including in particular scientists and civil society.