The group of 77 developing nations (G77), led de facto by China, has called for the implementation of a compulsory licensing system to facilitate the transfer of green technologies. These nations posit that such a system would fulfill vital international obligations established under the UN Framework Convention on Climate Change (UNFCCC) and the WTO Agreement on the Trade Related Aspects of Intellectual Property (TRIPS).

Those spearheading the negotiations, namely Brazil, India, China, and South Africa argue that a declaration on climate change should be similar to the Doha Declaration on Public Health, which creates a mechanism for WTO members to issue compulsory licenses for the production and export of generic versions of patented drugs to countries with insufficient capacity to manufacture or access those drugs.

The legal bases on which this group of nations relies are Articles 4.3 and 4.5 of the UNFCCC, which demarcate a clear obligation by developed nations to provide financial resources to enable developing countries to reduce their emissions and to take “all practicable steps” in promoting technology transfer. The G77 also relies on 45 declarations of the October 2007 WIPO General Assembly, which relate to technology transfer.

The bulk of the commentary that I’ve come by passionately disapproves of this proposed approach to green technology transfer. The obvious criticisms to such an approach are that compulsory licenses will stifle innovation in this sector, and that major players in R&D will focus on the inane and frivolous in pursuit of higher profit margins. Less obvious is the difficulty that is posed in attempting to define what in fact constitutes green technologies. Given this, the potential uncertainty that a policy of “forced sharing” could pose to innovators is stifling, as innovations such as watches that tick longer from a single battery, might be the subject of compulsory licensing. Moreover, what would this mean for industries hit hard by the economic crisis, such the already floundering North American automotive industry? If large developing nations could appropriate their patented green technologies, such as those relating to improved fuel economy, mandatory licensing could be spell economic disaster.

Some critics contend that what is in fact at stake is millions if not tens of millions of jobs in developed countries. It has been contended that the EU would likely lose its ability to reinvigorate its economy, create jobs, and lead the world in green technologies, unless compulsory licenses are avoided. Others cite the additional bureaucratic burden that would be the cost of negotiating, implementing and regulating a Doha Declaration on green technologies. Essentially, the sum of the critiques weigh strongly in favour of financial assistance as being the primary, if not only, option in the facilitation of green technology transfer.

Despite the vehement opposition to this approach in the literature, I would like to take this opportunity to play devil’s advocate, and suggest that aspects of this proposal may indeed be meritorious. In Canada, and I suspect most other nations, the public interest is at the core of the justifications for establishing a patent law system. What could be more fundamental to the public interest than the health of the planet? I ask this rhetorical question not to imply that compulsory licensing is the magical solution to climate change, but to suggest that the Doha Declaration on Public Health is a diplomatic acknowledgement of the power vested in the international patent system in relation to human rights and development.

To write off this attempt by the G77 as “hopelessly naive or foolishly greedy,” as some critics have, is farcical. As with most natural disasters, it is the poorest in society, and certainly the developing nations that will bear the burden of climate change. G77 countries argue that exceptional measures are urgently required to speed up technology diffusion to combat climate change, and on this basis invoking the “flexibilities” of the TRIPS agreement is justifiable.

Given appropriate limitations, I tend to agree that the significant challenges posed by climate change could be attacked to some degree by exercise of the flexibilities of TRIPS. In truth, this would require significant international cooperation, such that compulsory licensing would be appropriately regulated to: 1) ensure that reasonable prices are paid for the licenses; 2) ensure that the technologies are truly only diffused on this basis to areas that would otherwise not have even been in the market for these technologies; 3) require licensees not to compete with involuntary licensors; and 4) set out clear limits on what green technologies may be the subject of compulsory licenses. Whether or not such cooperation and regulation is achievable, is an entire other blog topic.

For more information see:

International Centre for Trade and Sustainable Development, “Lobby Group Opposes Proposed Changes to Green Technology��Patents,” (2009) 9:21 Bridges Trade BioRes , online: < http://ictsd.org/i/news/biores/62272/>

Kogan, Lawrence, “Climate Change: Technology Transfer or Compulsory License?” (2010) presented at The American National Standards Institute (ANSI) Monthly Caucus Luncheon on January 15, 2010. Online:��<http://www.itssd.org/LKogan%20-%20Climate%20Change%20-%20Technology%20Transfer%20or%20Compulsory%20License%20-%20ANSI%20Luncheon%201-15-10.doc>

Parliament of Australia, “The object and purpose of the United Nations Framework Convention on Climate Change (UNFCCC),” online: <http://www.aph.gov.au/library/pubs/climatechange/governance/international/unfccc/unfccc.htm>

Rosenzweig, Sidney, “Compulsory Licenses & Green Technology,” (2009) The Progress and Freedom Foundation Blog, online: <http://blog.pff.org/archives/2009/03/i_just_wrote_a_lengthy.html >

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Personation is an offence under section 403 of the Canadian Criminal Code, and requires intent for either personal gain or to harm another. Despite this being the first charge of its kind in Canada, it represents but one extreme case of the growing phenomenon of cyber-impersonation and cyber-bullying. One high school student reports that they have "…seen MySpace pages made about other students. They take their picture, copy them, put them on a new MySpace and then draw over the face or write false information."

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Social-networking sites are no longer confined to aid procrastinators evade writing papers, rather they have become a preeminent means of representing oneself to the public, and inquiring about others. Employers and employees use them to develop their professional networks, and the police use them to monitor suspicious behaviour. Representations on these sites are of great consequence, and it is thus understandable that the criminal law has finally become implicated in this manner.

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Cases such as this one engage IP inasmuch as they represent ideas as expressed through a digital medium, and there are both moral and economic interests in these works. So criminal circumstances aside, can such behaviour constitute fair use/fair dealing? Responding viscerally, I would respond “well if Tina Faye can impersonate Sarah Palin on SNL to entertain cable subscribers, can’t I build a satirical, yet meaningful critique of the cheerful hockey mom via Facebook?” Returning to my legal senses, however, it is clear to see that this is really a question of the current attitudes towards parody vis-à-vis fair dealing.

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Parody, as it stands currently, has not been recognized in the common law to constitute a form of criticism; however, some academics believe that parody has an important niche in society, making an important contribution to social discourse. Following the guidance in the opinion of the Supreme Court in Michelin v. CAW Canada [1996] F.C.J. No. 1685, if Facebook impersonators are to come remotely near fair dealing it is clear that in the least there needs to be some form of explicit attribution to the creator of the works, and more importantly, that the use is fair.

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Given the fact that these impersonations are now leading to criminal charges, it is very unlikely that any of the afore-described uses will be categorized as fair. As for my Palin page, although I trust my ability to create a fair portrayal of her whimsical public appearances from the reasonable law student’s perspective, I’d prefer to avoid engaging with the criminal justice system for the cheap laugh.

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