Ngozi Okonio-Iweala, Director General of the World Trade Organisation (WTO) was asked at a recent Q&A if she would support an intellectual property waiver for climate change mitigation technologies. “I could not agree more,” she responded, “we’re going to see more of this type of argument and I hope we’ll find a way, because really trade needs to help spread green technologies. It’s one of the things we can do for adaptation and [climate change] mitigation and for decarbonisation.”
The concept of an intellectual property rights (IPRs) waiver is not a new one. During the Covid-19 pandemic, India and South Africa petitioned the WTO to introduce a substantive waiver on IPRs relating to Covid-19 vaccines and technologies (for example, diagnostics and personal protective equipment), and was supported by more than 100 other states. The proposal identified that developing and least-developed nations were disproportionately impacted by the pandemic’s effects, and that patents and other IPRs were a hinderance to the “timely provisioning of affordable medical products”. The proposal, however, was not supported by several high-income countries and a compromise agreement was eventually reached on vaccines alone.
Conversations around access to essential products, however, have been traditionally confined to the pharmaceutical and life sciences industries. Okonio-Iweala’s comments, building on similar from the UN Secretary-General and suggestions India is considering raising the issue at the G20, mean that conversation has now been extended to environmental technologies. Nonetheless, the basic arguments for and against waivers are common.
A short break in IP protection is supposed to support or enable access to protected technologies by those who otherwise would not be able to. In the context of environmental technologies, the public-interest angle to this argument is quite clear: climate change is a global threat that requires a global response, and that means spreading technologies that support sustainability goals to all parts of the world.
Yet opponents to waivers suggest that IP is not the barrier to access some claim it to be. In the case of the proposed Covid-19 waiver, opponents highlighted a waiver would not speed production, could compromise productive cooperation between innovators, and could weaken incentives to innovation. Any waiver proposal would likely be met with substantial opposition from high-income countries, especially given the rise of a ‘green trade war’ between the US and EU. Subsidies in these jurisdictions will encourage innovation and protection of those innovations, and it follows that states will be keen to preserve these protections in light of their investment. Like all waivers, there is also the question of manufacturing capability and know-how – a patent, after all, is not a blueprint or recipe and only specific LMICs will have the capacity to utilise high-technology green patents.
Pharmaceutical products and green technologies may also not be as comparable as desired. Whilst green technologies can take a range of forms, in several cases (e.g., technology related to a wind turbine) these will not be manifest in consumer goods the way medication is. Substantial government backing is generally required for green energy projects, and in states with limited resources or unstable governance, this – rather than access to IP – may represent the largest barrier to implementation.
We ought therefore to consider alternative approaches which might incentivise innovation whilst still ensuring access to essential products. The Medicines Patent Pool, for instance, has been effective in providing crucial medications to the developing world for HIV, tuberculosis, hepatitis C, cancer and Covid-19. Its model involves sublicensing rights acquired from patent-holders to generic manufacturers and using competition between them to drive down costs to the consumer. A similar approach, pooling appropriate climate change mitigation technologies and sub-licensing those to generic manufacturers on access-oriented terms, might be effective.
It remains to be seen if a waiver proposal for green technologies will emerge. Should it do so, many of the challenges afflicting previous waiver proposals will show themselves again, a circumstance not assisted by the current geopolitical situation in relation to green technologies. A solution that incentivises innovation in the long-term, permits competition and encourages voluntary licensing is preferable for all.