Book review: Intellectual Property Rights and Climate Change: Interpreting the TRIPS Agreement for Environmentally Sound Technologies

Climate change is devastating: “The UN General Assembly once recognized that climate change is ‘a common concern of mankind’ and should be dealt with effectively within a comprehensive global governance system.” It is widely acknowledged that the fight against climate change requires not only better technologies, but also LEGAL INNOVATION, by means of which a satisfactory balance between IPRs protection and technology diffusion can thus be possibly found. Unfortunately, the innovation and transfer of Environmentally Sound Technologies (ESTs), as an important part of the solution to climate change, has not taken place fast enough to effectively mitigate climate change.

Over the past weeks, this Kat has been delving into the book Intellectual Property Rights and Climate Change – Interpreting the TRIPS Agreement for Environmentally Sound Technologies recently launched by Cambridge University Press, and feels very much inspired by this new force on the legal front. 

This book is (very well-)written by Dr. Wei Zhuang. She takes a clear-eyed view of the interface between the TRIPS Agreement and innovation and transfer of ESTs.

A highly respected academic, Carlos Correa writes in the foreword that this book “contains what is perhaps the first comprehensive study on the characteristics and possible implications of the international intellectual property and technology transfer regime as applied to ESTs.” Plus, it is “the outcome of an interdisciplinary research combining economics and various disciplines of national and international law, including law of the treaties, WTO law and competition law.”

Two main research questions were addressed in this study:

1. Whether and to what extent the minimum IPR standards established by the TRIPS Agreement facilitate or inhibit innovation and transfer of ESTs;

2. Whether and to what extent the TRIPS flexibilities can be interpreted to facilitate innovation and transfer of ESTs so as to address global climate change. 

The analyses provided by the book is solid. In particular, this Kat was very interested in (and learned a lot from) Chapters 6 and 7 – on the patent-related flexibilities and the competition-related flexibilities – which are dedicated to investigating whether, and to what extent, the limits to patent protection and the competition-related provisions in the TRIPS Agreement, when properly interpreted, could be applied to facilitate innovation and transfer of ESTs, thus contributing to reconciling the public interest in tackling climate change with the private sector’s interest in IP protection. 

Dr. Zhuang confirms the existence of some “flexibilities” within the TRIPS Agreement, and then in Chapter 8, in order to make the balanced and pro-competitive interpretation of the TRIPS Agreement contained in Chapters 6 and 7 more authoritative, she proposes a Doha-type Declaration on IPRs and Climate Change. To further remedy the insufficiency of the treaty interpretation, she recommends some international guidelines for licensing of IP-protected ESTs “as possible pathways to improve the current international IP regime for facilitating innovation and transfer of ESTs”. 

This book was published in June 2017 and is now available in hard book or e-book. ISBN: 9781107158085, doi:10.1017/9781316662892.

Attention: A flyer about the book (with a discount code) is available here.