The WIPO Journal
Since the wave of independence that swept former European colonies in the middle to late twentieth century, access to technology and knowledge has been at the core of demands for restitution and aid by developing countries. The demands found their strongest expression in the Declaration on the Establishment of a New International Economic Order (NIEO) 1974 which sought, among other things:
“Giving to the developing countries access to the achievements of modern science and technology, and promoting the transfer of technology and the creation of indigenous technology for the benefit of the developing countries in forms and in accordance with procedures which are suited to their economies.”
This demand for transfer of technology as a means of achieving development was central to the vision of the NIEO and was adamantly resisted by developed countries. A core part of this demand was a restructuring of the international intellectual property framework, primarily at WIPO, to better provide access to technology and knowledge for developing countries. A modest success was achieved in the 1967 Stockholm Intellectual Property Conference in the inclusion of an appendix in to the Berne Convention for the Protection of Literary and Artistic Works 1886, but no such success was achieved for the Paris Convention for the Protection of Industrial Property 1883 or the other treaties operating under the WIPO umbrella. Developing countries reacted by resisting any new norm-setting at WIPO, and this may have contributed to the impasse that led developed countries to seek other venues. This impasse culminated in the inclusion of intellectual property into the Uruguay Round of Multilateral Trade Negotiations that led to the formation of the World Trade Organization and the entry into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement). Intellectual property has been at the core of the “development” discourse since the middle of the twentieth century. Developing countries have believed that technology transfer was crucial to economic development and “modernisation” and very quickly identified intellectual property protection as a barrier to achieving access to the best available technologies. Developing countries argue that the international intellectual property system, and specifically the TRIPS Agreement, unduly restricts their ability to take measures to encourage and enable technology transfer.
This article argues that this historical pattern has not only leaked into the climate change discussions, but has also reached its apotheosis as a “development” issue in the climate change negotiations. The article is made up of two key parts that explain: 1) how intellectual property and technology transfer became environmental and climate issues; and 2) how the climate challenge (in scope and timing) of technologies is essentially a development challenge.
Copyright © 2016, World Intellectual Property Organization and the author
Sweet and Maxwell in association with Thomson Reuters
Place of Publication
Shabalala, Dalindyebo, "Intellectual Property, Climate Change and Development" (2016). School of Law Faculty Publications. 58.