In particular, they adopted what most view as an inadequate text, but one which nevertheless recognizes the need to promote technology innovation and technology transfer.  It emphasizes technology transfer to developing countries on concessional terms that may limit market rewards otherwise provided by intellectual property rights.  Specifically:

• …We recognize the critical role of technology as well as the importance of promoting innovation, in particular in developing countries. We invite governments, as appropriate, to create enabling frameworks that foster environmentally sound technology, research and development, and innovation, including in support of green economy in the context of sustainable development and poverty eradication.

• We emphasize the importance of technology transfer to developing countries and recall the provisions on technology transfer, finance, access to information, and intellectual property rights as agreed in the Johannesburg Plan of Implementation, in particular its call to promote, facilitate and finance, as appropriate, access to and the development, transfer and diffusion of environmentally sound technologies and corresponding know-how, in particular to developing countries, on favourable terms, including on concessional and preferential terms, as mutually agreed.

The Rio + 20 text, however, does little to advance the ball in this regard, merely “urg[ing]” developed countries to make “additional concrete efforts” to reach development aid targets, noting “with grave concern” the lack of sufficient funding commitments to prevent global warming more than two degrees Celsius above pre-industrial levels, and “welcoming” creation of the Green Climate Fund to supply such funding and technology transfer for climate change mitigation and adaptation measures.  The text emphasizes both the full use of the provisions of the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS  Agreement), and specific measures taken by the WTO to ameliorate restrictive effects of the TRIPS Agreement in the context of access to medicines.

Given the background of lack of progress at the Bonn negotiating meeting of the UN Framework Convention on Climate Change, the Rio + 20 text can only be read as glossing over the deep and continuing divides between the developed North (and emerging economies) and the developing South over intellectual property rights.  What is more relevant is that the hoped-for massive expenditures for technology transfer for mitigation and adaptation measures may not be forthcoming, but nevertheless massive private and governmental expenditures in energy, transportation, and other infrastructures will occur.  For just one example, the eight largest multilateral development banks have recently pledged to expend US$175 billion on sustainable transportation systems.  These investments are sought to “leapfrog to a greener future of less motorization, shorter commutes, and more energy-efficient transport systems."  Anticipating or resulting from these investments, numerous public and private intellectual property rights will be generated and, presumably, licensed at costs that will likely generate conflicts for both purchasers and recipients.

Much of the hoped-for funding for mitigation and adaptation will be provided by or to governments.  Accordingly, the question arises as to the best form in which national governments should make their investments in innovation.  Although much has been said about the creation of intellectual property rights for inventions made with government funding (as under the Bayh-Dole Act), relatively little analysis exists about the best way to expend government money for innovation in the first instance.  Governments may seek to develop technology through: (1) government procurement (including guaranteed market commitments); (2) direct development by government actors (e.g., in national laboratories); (3) government subsidies to private actors (either in the non-profit and university sector or in industry, through direct payments, tax incentives, or prizes); (4) government constructed commons; and (5) government “encouragements” (e.g., certification programs) and “threats” (e.g., of market price regulation, competition enforcement, or even nationalization).  None of these particular methods reflect any necessary policy on intellectual property rights, ownership, and licensing.  And all of them have been used at different times in different industrial contexts – such as national defense (procurement); renewable energy (national laboratories); biotechnology and medicine (government subsidies); data generation and DNA sequence information (constructed commons); and energy efficiency certifications (encouragements) and transportation patent pools (threats of compulsory licensing).  Which method is best is now a question of critical importance, both to cost-effectiveness of the massive forthcoming investments and their success in addressing the forthcoming problems.

Joshua D. Sarnoff is a Professor of Law at DePaul University College of Law in Chicago, where he teaches patent law, other intellectual property law classes, and law and climate change. He is a registered patent attorney, a former member of the Board of Governors of the Federal Circuit Bar Association, and a pro-bono advocate in judicial, legislative, and administrative fora.

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I spent this past summer interning with the (UNDP) in Jakarta, Indonesia. Preparing to take part in the new this coming fall gave me an opportunity to reflect on the intersection between IP issues and development work during my time in Southeast Asia.

At the start of my internship with the Access to Justice cluster, I immediately recognized that IP law, and anything connected to legal rights or issues in fact, only made up a negligible fragment of development concerns. There could be a number of explanations for this.

The first is that when we think about development issues, our initial thoughts relate to access to basic rights and services such as food, shelter, health, and security. This is where the roles of UNDP units such as the and the are most relevant. Then there’s the , which ensures that village land rights and sustainable communities will stay in place throughout the development process. It is typically only after each of these units has been thoroughly examined and detailed that the role of my unit, the , arrives. It is only then that development issues dare to approach the wide-scale, long-term objectives of development, such as organizing democratic elections, increasing female participation in the parliamentary process, and strengthening the capacity of local and provincial governments. And finally, in what appears to be a tiny corner of the unit, lies our Access to Justice cluster, working away at, among other things, enhancing legal awareness, access to legal information, and access to legal services. For example, the (LEAD) Project focuses heavily on educating local communities on legal issues, particularly on domestic violence and land rights, and providing avenues of recourse for legal grievances by setting up complaint posts or training paralegals.

Another explanation for why the law does not play a larger role is that Indonesia is a place where the law tends to be employed as the last resort. In many areas, particularly in some of the more rural provinces, communities prefer to find remedies for grievances from informal justice actors, such as village and religious leaders, rather than formal justice actors, such as the police or the courts. The UNDP in the Aceh province, for example, found it more meaningful to strengthen and clarify local “adat” justice customs and practices, in collaboration with formal justice actors, rather than focusing solely on increasing the role of the courts in these communities.

UNDP projects are primarily funded by donors. So, working on issues that can be easily sidelined in the face of more pressing development concerns means not simply that we must consistently explain to our donors why access to justice is important, but that we need to constantly reflect on and clarify to ourselves the goals of and meaning behind our work.

This, then, is my short pitch on why access to justice – and IP law – is integral to development programmes.

First, access to justice is closely linked to those “basic rights” identified in common development initiatives. A strong, current legal system can bolster and accelerate the development process, whereas a weak, outdated system can shackle it. For example, basic public services, including health and education, are provided by government agencies. If the quality of those services is not satisfactory, beneficiaries need to be able to recognize deficiencies, know how to find a remedy for them, and have the resources to obtain that remedy. Access to justice plays an essential role in each of those steps – increasing awareness of basic rights, educating communities on how to enforce those rights, and providing the means for them to do so. In fact, this scenario has become the launch pad for the development of an integrated public grievance redress mechanism by UNDP and the Government of Indonesia under the follow-up project to LEAD, Strengthening Access to Justice in Indonesia (SAJI). Therefore, a strong legal framework is critical to strengthening access to basic rights.

Intellectual property law can play an equally important part in the development process. The growing body of research over the last ten years suggests that strengthening and reforming intellectual property rights (IPR) is associated with accelerated industrial development, particularly through increased foreign direct investment and international technology transfer.[1] IPR reform also, however, has the opportunity to act as a key facilitator of the transition between the old and the new. Strengthening the IPR system is not merely central to ushering in new foreign investment but to protecting the commercialization of local and traditional products as well. For example, the is a non-profit programme that aims to market and commercialize the products of West Kalimantan indigenous weavers outside of Indonesia. In this scenario, IPR can be used both as an incentive to preserve Aboriginal crafts and culture and as a means of protecting those products during the commercialization process.  Therefore, IPR can play a key role in protecting the old and welcoming the new during and throughout a country’s economic development.

Although copyright, trade-marks, patents, and industrial design all seem conceptually distant from development issues, it is important to keep them in the big picture policy framework of the development process. Access to justice – be it criminal, administrative, health, labour, or intellectual property – is critical to economic development because it should always be an aide, not a hindrance, to obtaining those basic rights and services.

In the IP blogosphere of patents cases, copyright legislation, and trade-marks registrations, I realize that this post may seem like an odd one. However, interning with the UNDP has helped me understand that, particularly in a world that increasingly demands specialized expertise, it is important to expand rather than restrict the immense potential that intellectual property rights have to shape the arena outside of law and in particular in the development world.

This post is dedicated to the committed staff – and my dear co-workers – of the Democratic Governance Unit of UNDP Indonesia. Your work changes lives!

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