Weakening blocks tech R&D and stops emissions cuts

Therefore, without green technology, it would be difficult, if not impossible, to meaningfully mitigate climate change. This is notwithstanding the important roles policy, education, and changes of basic habits have to play in the climate change solution equation. This fundamental role of green technology, coupled with the global issue of the climate change problem, distinguishes green technology from other technologies. As a result, there are clear benefits to closing the knowledge gap in terms of such technology between developed, developing, or least developed countries, and facilitating access to green technology. III. Intellectual Property and Technology A. Intellectual Property Intellectual property rights are central to technology as they are often73 embodied and conceptualized in the form of proprietary rights, which are transferrable, licensable, and subject to trespass in the form of infringement. Article 7 of the Agreement on Trade-Related Aspects of Intellectual Property Rights74 (TRIPS) acknowledges this role of intellectual property rights: The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. It may be convenient to consider intellectual property as one general unit when discussing its relationship with innovation. However, as each type75 of recognized intellectual property serves different roles, a general label of “intellectual property” may over-simplify certain matters.76 Accordingly, it may not do justice to the issues at hand to equate technology to just one type of intellectual property.77 The fact of the matter is that the role of different intellectual property rights varies between different industries and different technological fields.78 As will be discussed in more detail below, different types of intellectual property have different relationships with technology; some are more relevant to technology and some are less. The subject matter of certain types of intellectual property may be more at the forefront of developing technology than others. For example, computer programs, which are normally protected by copyright,79 are usually technical in nature. Also, patents have traditionally been considered the type of intellectual property that best relates to technology since only new inventions are patentable.80 In fact, the relationship between patents and innovations has attracted much attention and is currently a common subject of discussion.81 In order to distinguish technical types of intellectual property and non-technical types of intellectual property, they may be broadly categorised as “Technological IP” and “Non-Technological IP” respectively. Such a distinction can be seen as akin to what Hughes identified in his article The Philosophy of Intellectual Property82 as nonexpressive and expressive intellectual property. Hughes discussed whether the former is more deserving of legal protection than the latter.83 More technical subject matter, such as patents, would require less expressive activities in their creation, whereas artistic works, literary works (not being computer programmes or circuit drawings), and trademarks are less technical and as a consequence would require more expressive activities in their creation. Accordingly, Technological IP (the more technical subject-matter of the two categories) may include patents, integrated circuit designs, copyright in relation to computer programs, and protection against unfair competition (including trade secrets and confidential information). In contrast, Non-Technological IP, on the other hand, may include copyright (not including computer programs or circuit drawings), trademarks, industrial designs, geographical indications, and protection against unfair competition (including trade secrets and confidential information). The distinction between the two categories is relevant to the present discussion because their impact on the development and diffusion of green technology differ; as a consequence justifications may, therefore, also differ. While there may be personality and labour justifications in connection with intellectual property, insofar as green technology is concerned, entitlement or deservedness of greater or lesser legal protection is beside the point. Rather, due to the state of the climate change emergency and the impact intellectual property laws have on the development and adoption of green technology, no matter how much investors and inventors deserve to reap the fruits of their labour, such entitlement should not outweigh the benefit of flexible access to them. However, as will be seen below, notwithstanding the moral argument, the benefits of commercial incentives may outweigh any negative consequences of intellectual property rights. B. Technology Technology is given many definitions. It has been defined as “the application of scientific knowledge to the practical aims of human life or, as it is sometimes phrased, to the change and manipulation of the human environment.”84 In general, technology is the result of innovation and applied knowledge that is the direct or indirect result of the human mind, and technology may be categorized as “low,”85 “medium,”86 and “high.”87 The driving force behind technology is innovation.88 The OECD defines innovation as “the implementation of a new or significantly improved product (good or service), or process, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations.”89 Innovation is not confined to the research and development of technology, but includes its adoption and diffusion.90 Accordingly, the impact on green technology we are considering in this paper is the impact of intellectual property rights on innovation of technology.91 1. IP and Green Technology (Generally) Interestingly enough, the greatest contributing factor to the increase in greenhouse gas emissions arises from industrial development; patent laws encouraged industrial development because both were developed during the commencement of industrialisation.92 Although technology is blamed for the cause of “man-made” climate change, it is also widely recognized as a solution to the same.93 This reasoning also applies to intellectual property rights, which may have contributed to climate changing technologies but may also have spurred the development of green technology.94 There is a growing discussion regarding how intellectual property rights affect the development of green technology and how such rights can be used to facilitate the diffusion and development of such technology.95 The Intergovernmental Panel on Climate Change has highlighted that, of the different technologies96 that have significant roles in mitigating climate change, each varies in the degree of assistance that it requires to become developed and diffused. Some require substantially further research and development, while others just need a market incentive.97 Either way, it is quite clear that intellectual property rights are a key to the solution in light of the influence it has on research and development as well as market incentives.98 C. Intellectual Property Impacts Green Technology Intellectual property laws have a distinct role in shaping both the development of technology in general as well as green technology.99 However, the precise extent intellectual property rights shape the development of and diffusion of green technology is not entirely clear because few comprehensive studies have been conducted assessing the impact intellectual property rights have on the various categories of clean technologies.100 In fact, due to the nature of the issue, it would be a difficult, if not an impossible, task to ascertain in empirical terms, the extent to which intellectual property rights have hindered (or encouraged) the development of and diffusion of green technologies.101 The role of intellectual property rights in shaping the development and diffusion of green technology is well recognized, as demonstrated below. So far, the approach has resulted in both positive strategies102 aimed to encourage the development of green technology and negative strategies103 to prevent the development of environmentally unfriendly technology. D. Strategies 1. Positive Strategies The underlying and most apparent reason why intellectual property has a bearing on the development and diffusion of green technology is quite simple: research and development will only be procured on a meaningful level if there are financial incentives to do so.104 Intellectual property rights provide these incentives. The Intergovernmental Panel on Climate Change put it succinctly: Technology research and development (R&D) are important for altering the emission trends shown in the previous sections. In the absence of measures fostering the development of climate-friendly technologies and/or a lack of incentives for their deployment, however, it is not a priori obvious in which direction R&D will influence emissions. Because of the longevity of energy infrastructures (lock-in effect), it is the near-term investment decisions in the development, deployment and diffusion of technologies that will determine the long-term development of the energy system and its emissions (Gritsevskyi and Nakicenovic, 2002). Generally speaking, it would be economically impossible without technology research, development, demonstration, deployment and diffusion (RDDD&D) and induced technology change (ITC), to stabilize GHG concentrations at a level that would prevent dangerous anthropogenic interference with the climate system. Government support is crucial at the development stage, but private investment will gradually replace the former for deployment (creating necessary market transformation) and for diffusion (successful market penetration).105 In short, intellectual property laws provide a guarantee to technology developers (which may include government research programs,106 private companies, as well as universities which normally collaborate with the private sector and bring their innovations to the industry through technology transfer)107 that their investment in developing technology will result in guaranteed rights to exploit them exclusively and rights to prevent others from using their technology without authority. Works and inventions may be created by the “talented” in circumstances where the work or invention did not come about with a view for financial gain. However, it is well accepted that businesses drive innovation,108 and a good portion of intellectual property is produced as a result of financial investment.109