IP rights under LCA text

Legal assistance paper

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Date produced: 09/12/2010

1. Does paragraph 125 in the current LCA text being negotiated (FCCC/AWGLCA/2010/CRP.3) provide the UNFCCC/COP authority over existing or future intellectual property rights? 

2) Is paragraph 125 a place holder for future COP authority?

3) Is the UNFCCC prevented from asserting any authority or control over IP rights?

Summary:

The LCA text does not provide the UNFCCC/COP authority over existing or future intellectual property rights and is not a placeholder for future COP authority.

This does not mean, however, that the UNFCCC is prevented from asserting authority or control over IP rights. The UNFCCC can be seen to be controlling and asserting its authority in relation to the Parties’ IP rights indirectly and vicariously through bodies that have been created under it.

Advice:

”125. Recognizes the different views on intellectual property rights among Parties and the importance of continued dialogue among Parties on this matter in 2011 in the context of enhancing technology innovation and access to technologies for mitigation and adaptation;”

Paragraph 125 “recognizes” different views on intellectual property rights among Parties and the importance of continued dialogue among Parties on technology innovation and technology transfer.

1. The verb “recognizes” is used in UNFCCC documents where the Parties intend to admit something to be true or real or recognise the existence of a certain fact rather than creating rights or obligations amongst the Parties . In addition, the content of Paragraph 125 does not contain any language which purports to create a right or assert an authority in relation to intellectual property rights.

Therefore in our view, paragraph 125 does not provide the UNFCCC/COP with authority over existing or future intellectual property rights

2. As noted above paragraph 125 does not contain any language which asserts or refers to an authority for the COP/UNFCCC in relation to intellectual property rights. In our view therefore, Paragraph 125 cannot be interpreted as a placeholder for future COP authority in respect of intellectual property rights.

3. The UNFCCC is not prevented from asserting some authority or control over IP rights. In fact, it could be seen to indirectly influence the transfer and management of the Parties’ IP rights through the adoption of a COP decision and/or the establishment of technology and development transfer operational bodies.

In the current LCA text (Section IV(B)) there are extensive provisions relating to technology development and transfer. This section aims to address the imbalance of access to information between developed countries and developing countries and to facilitate the sharing of technical information “to support action on mitigation and adaptation in order to achieve the full implementation of the Convention.”

Pursuant to this main objective, paragraph 110 sets out the requirement for a technology mechanism to catalyse action for achieving the objectives of section IV(B). The facilitation of fast and effective technology transfer between the Parties would necessarily impact on the treatment of the Parties’ IP rights.

Section IV(B) paragraph 110 sets out provisions relating to the establishment of a Technology Executive Committee and a Climate Technology Centre and Network. These functional bodies, created under the authority of the COP (and therefore the UNFCCC) would “operationalise” the technology and development transfer mechanism put in place. In this way, the UNFCCC can be seen to be controlling and asserting its authority in relation to the Parties’ IP rights indirectly and vicariously through bodies that have been created under it.