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This collection considers the future of climate innovation after the Paris Agreement. It analyses the debate over intellectual property and climate change in a range of forums – including the climate talks, the World Trade Organization, and the World Intellectual Property Organization, as well as multilateral institutions dealing with food, health, and biodiversity. The book investigates the critical role patent law plays in providing incentives for renewable energy and access to critical inventions for the greater public good, as well as plant breeders’ rights and their impact upon food security and climate change. Also considered is how access to genetic resources raises questions about biodiversity and climate change. This collection also explores the significant impact of trademark law in terms of green trademarks, eco labels, and greenwashing. The key role played by copyright law in respect of access to environmental information is also considered. The book also looks at deadlocks in the debate over intellectual property and climate change, and provides theoretical, policy, and practical solutions to overcome such impasses.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction: The Road to Paris: Intellectual Property, Human Rights, and Climate Justice

Abstract
As well as outlining the structure and organisation of the collection, this introduction seeks to contextualise the debate over intellectual property and climate change. As a foundation to the collection, it provides an overview of the negotiation, agreement, and implementation of the Paris Agreement 2015. It offers a literature review in respect of international climate law, human rights, and technology transfer. The introduction highlights key research and scholarship on intellectual property and environmentally sound technologies. It outlines the relevance of various disciplines of intellectual property to the debate over climate change. In particular, it looks at the role and function of patent law, trademark law, consumer law, design law, copyright law, trade secrets, open licensing, as well as plant breeders’ rights, access to genetic resources, and Indigenous knowledge. It examines climate litigation in the field of intellectual property. The introduction considers the scope for law reform to ensure that intellectual property laws are better adapted to promote substantial and meaningful action in respect of climate change. It also explores how innovation law and policy may best promote climate justice and human rights.
Matthew Rimmer

International Law

Frontmatter

Chapter 2. The Paris Agreement: Intellectual Property, Technology Transfer, and Climate Change

Abstract
In the lead up to the Paris Agreement 2015, the United Nations Secretary-General Ban Ki-moon has commented: ‘Intellectual property, technology transfer, and financing are among a wide range of topics that must be addressed in the context of climate change and sustainable development’. The Paris Climate Talks considered a number of issues related to intellectual property, technology transfer, and finance. Draft Article 56.3 laid down a number of options. The first option suggested a number of possibilities to facilitate technology transfer. Item A suggested that developed countries ‘provide financial resources to address barriers caused by intellectual property rights (IPRs) and facilitate access to and the deployment of technology, including inter alia, by utilizing the Financial Mechanism and/or the establishment of a funding window under the Green Climate Fund/the operating entities of the Financial Mechanism.’ Item B called for ‘an international mechanism on IPRs to be established to facilitate access to and the deployment of technology to [developing country Parties].’ Item C asked for other arrangements to be established to address intellectual property rights—such as ‘collaborative research and development, shareware, commitments related to humanitarian or preferential licensing, fully paid-up or joint licensing schemes, preferential rates and patent pools.’ Item D suggested that ‘funds from the Green Climate Fund will be utilized to meet the full costs of intellectual property rights (IPRs) of environmentally sound technologies and know-how and such technologies will be provided to developing country Parties free of cost in order to enhance their actions to address climate change and its adverse impacts.’ The second option was that ‘Parties recognize that IPRs create an enabling environment for the promotion of technology innovation in environmentally sound technologies.’ The third option favoured by developed countries is that ‘IPRs are not to be addressed in this agreement.’ The fourth option was for ‘Developed country Parties to make available Intellectual Property (IP) through multilateral institutions as public good, through purchase of intellectual property.’ The Paris Climate Talks saw a number of announcements on innovation—including Mission Innovation, and the International Solar Alliance. At the Paris talks, Indian Prime Minister Narendra Modi contended that: ‘Our innovation initiative should be driven by public purpose, not just market incentives, including on IP.’ He emphasized that: ‘We need to scale up the Green Climate Fund that will improve access to technology and intellectual property.’ For his part, US President Barack Obama flagged that he was willing to engage in a dialogue over matters of technology transfer. In the end, there was text on technology transfer in the Paris Agreement 2015—but no substantive text on intellectual property and climate change.
Matthew Rimmer

Chapter 3. Transparency in Climate Finance After Paris: Towards a More Effective Climate Governance Framework

Abstract
The Paris Agreement charts a new course for measuring, reporting, verification (MRV) of State obligations with the intensification of the emphasis on the criterion of transparency. This is, in part, responsive to modern debates in regards to environmental law generally and climate law in particular. Transparency is crucial to the success or failure of climate mitigation and adaption regimes because climate governance is intimately connected to the ideals of deliberative democracy, public participation, and the rule of law. The Paris Agreement thus presents a ground-breaking and important point in time for both developed and developing States. Aligned with this requirement is the desire to increase the amount and flow of ‘climate finance’ from developed to developing states. The associated need for transparency in funding flows has been raised in part through the accusations of misused or inadequate funds, ‘tied’ funding and double counting. Though there are new informational requirements placed on states in the Paris Agreement, they also present considerable practical challenges. The purpose of this chapter is to analyse the principle of transparency in climate finance and to chart the direction of the associated informational requirements in light of the measures agreed at Paris.
Felicity Deane, Evan Hamman

Chapter 4. The Paris Agreement: Development, the North-South Divide and Human Rights

Abstract
In December 2015, nations of the world joined together in Paris to negotiate a new legal instrument to address climate change. The debates which took place in the lead up to the adoption of the Paris Agreement reflected broader, ongoing tensions between developed and developing states within the international climate regime. They also demonstrated the divergence of opinion between states as to the relationship between climate change and human rights. While the human impacts of climate change are now well-understood, there is still debate as to what a human rights-based approach to climate change should look like. This chapter argues that these geopolitical dynamics and differing priorities will continue to shape the implementation of the Paris Agreement, as well as the specific debates over intellectual property, finance, technology transfer and innovation. The chapter therefore provides an important contextual backdrop for further analysis of these issues.
Anna Huggins, Bridget Lewis

Chapter 5. Climate Change and Human Rights: Intellectual Property Challenges and Opportunities

Abstract
Mitigating and adapting to the effects of climate change will require innovation and the development of new technologies. Intellectual property laws have a key part to play in the global transfer of climate technologies. However, failures to properly use flexibilities in intellectual property regimes or comply with technology transfer obligations under international climate change agreements calls for a human rights based analysis of climate technology transfer. Climate change is an unprecedented challenge and requires unprecedented strategies. Given the substantial impact of climate change on all of humanity and the ethical imperative to act, a complete rethink of traditional intellectual property approaches is warranted. This chapter proposes a series of intellectual property law policy options, through a human rights framework, aimed at promoting access to technologies to reduce the human suffering caused by climate change.
Alexandra Phelan

Patent Law

Frontmatter

Chapter 6. Intergenerational Justice: A Framework for Addressing Intellectual Property Rights and Climate Change

Abstract
Is there a conflict between intergenerational justice and the current global system of intellectual property (IP) rights to the extent that it acts as a hindrance to climate change mitigation and adaptation efforts? Addressing the potential for conflict between the intellectual property system and intergenerational justice depends on the role played by intellectual property in technology development and diffusion. It also depends on what role property rights have within a theory of intergenerational justice. We argue for a theory of intergenerational justice based on core human rights to life, subsistence and health and a notion of equality. A right to property (which includes intellectual property) is best seen as a vehicle for securing these core rights. We argue that both intergenerational and international justice are crucial in making more explicit the normative elements embedded in public policy-related arguments made in relation to intellectual property and climate change.
Heather Ann Forrest, Peter Lawrence

Chapter 7. Management of Intellectual Property in Australia’s Clean Technology Sector: Challenges and Opportunities in an Uncertain Regulatory Environment

Abstract
Australia’s history of developing and managing the intellectual property rights of domestic innovations is—at best—mixed. The relative immaturity of Australia’s public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management.
Kane Wishart

Chapter 8. Intellectual Property, Climate Change and Technology Transfer in South Asia

Abstract
The impact of climate change has emerged as a major threat to the sustainable growth and economic development of South Asia. The use of clean technologies is crucial for countries in the region to address climate change and achieve a low-carbon economy. At one end of the spectrum, the development of clean technology requires extensive research and investment; a strong patent system and the promise of substantial financial revenues in return are of paramount importance. At the other end, stringent intellectual property rights (IPRs) increase the cost of technological acquisition, making it difficult for economically unstable developing countries to make use of the patented technology. The role of IPRs in the transfer of climate change technologies to developing countries has therefore emerged in recent years as a highly controversial issue. This book chapter presents a critical analysis of how IPRs affect diffusion of clean technology into countries in South Asia.
Kanchana Kariyawasam, Matthew Tsai

Chapter 9. Intellectual Ventures: Patent Law, Climate Change, and Geoengineering

Abstract
This chapter considers the role of patent law in respect of geoengineering. Intellectual Ventures has developed a large portfolio of patents in this area. A number of other private and public entities have also filed patents in the field of geoengineering. In light of the recent precedents of the Supreme Court of the United States in respect of Bilski, Prometheus, Myriad, and Alice, it is worth exploring the question, Should patents on geoengineering be allowed? Defenders of geoengineering would maintain that such technology is legitimate, much like traditional forms of engineering. Critics, such as the ETC Group, have called for a ban on patents in respect of geoengineering. There have been fierce debates over the ethics of geoengineering. Philosophers and policy-makers such as Stephen Gardiner, Clive Hamilton, Bill McKibben, Al Gore, and Naomi Klein have argued over the merits over such technologies. It is useful to situate such a discussion in the context of previous debates over intellectual property and emerging technologies—such as biotechnology, nanotechnology, synthetic biology, and clean technologies. Moreover, this chapter explores the potential for patent thickets in respect of geoengineering. What will be the impact of such patents on research, clean technologies, the environment, the climate? There has also been much concern about the possibility of overzealous enforcement of patents in respect of geoengineering. As such, it is worthwhile considering what policy options for patent abuse will be useful or effective in this field. There is a larger international debate over the governance and regulation of geoengineering—particularly in light of the Paris Agreement 2015.
Matthew Rimmer

Trademark Law and Related Rights

Frontmatter

Chapter 10. Trademark Goodwill and Green Global Value Networks

Abstract
This Chapter focuses on the role of trademark goodwill in signaling environmental sustainability standards. In this view of trademark goodwill, brands potentially provide highly public platforms for interaction by firms and their customers to further various public and private policies. Brand value could play a far more significant role than it currently does to convey sustainability efforts and impacts to consumers, and thereby potentially create market-differentiation mechanisms for brand owners and increase supply chain sustainability—not to mention contribute to more meaningful choices for consumers participating in now ubiquitous global value networks. The Chapter concludes by proposing a new function of trademark goodwill, to augment and incorporate additional communicative nuance to its widely accepted signaling functions. This would expand the signal now primarily associating the trademark with its manufacturing origin and reputation to include the deeper, underlying standards and processes that the firm’s goods and services embody. In short, trademark goodwill performs a critical public, communicative function and therefore is a key public good within a regulatory governance framework for cross-border trade of environmentally sustainable goods and services.
Margaret Chon

Chapter 11. This Ain’t Your Daddy’s Greenwashing: An Assessment of the American Petroleum Institute’s Power Past Impossible Campaign

Abstract
After the Obama administration signed the Paris Agreement to limit emissions, the American Petroleum Institute, a lobbying group for the petroleum industry, created a consumer advertising campaign to promote the different ways that the gas and oil industries benefit U.S. citizens. The advertising campaign debuted in the most-watched television program in United States—the Super Bowl—during a time when the U.S. public held strongly different opinions on U.S. Energy policy from the incoming Trump administration and Republican-dominated Congress. Generally, citizens favor investment in renewable energy while the government favors expansion of oil and gas drilling. The American Petroleum Institute campaign attempts to persuade U.S. citizens that the petroleum industry can help U.S. citizens to ‘power past impossible’ and live better lives. This chapter evaluates whether these ads can be considered greenwashing, defined as to the use of messages with environmentalism or green credentials to suggest that a company’s policies and products are environmentally friendly. The Power Past Impossible campaign provides evidence of greenwashing through both explicit communications (such as unsubstantiated claims that ‘gas comes cleaner’ and ‘oil runs cleaner’) and implicit communications (the use of green imagery). The ads also conflate the benefits of innovative products made with petroleum and the production of these products, providing a halo effect that can be misleading.
Kim Sheehan

Chapter 12. The Power of Visual Appeal: Designs Law and Clean Energy

Abstract
The visual features of a clean energy product play an important role in promoting consumer desirability and sentiment, expanding the market for clean energy products and enhancing public buy-in. In the context of clean energy products, the visual features will be a secondary consideration to the functional features of the product. This chapter will outline the importance of visual features, and illustrate how they can be used to expand and consolidate a market for clean energy products. The registered designs system is one mechanism which could be used to secure rights in visual appearance. However, the designs system is underutilised in general, and particularly problematic where is comes to products where the primary consideration is the function. This chapter will outline the importance of design rights in the context of clean energy products and how these rights would assist in supporting the creators of such products and achieving policy aims with respect to clean energy. It will examine potential obstacles to effective protection, with some suggestions for improvement of the law.
Maree Sainsbury

Chapter 13. Key Change: The Role of the Creative Industries in Climate Change Action

Abstract
The role of the creative industries—arts and artists—in helping to drive the changes in laws and behaviours that are necessary to tackle climate change, while not superficially obvious, is a deep one. Arts and artists of all kinds, as cultural practitioners, have been closely entwined with social change and social control since time immemorial, in large part because they help shape our understanding of the world, framing ideas, prefiguring change, and opening hearts and minds to new ways of thinking. They have played a major role in campaigns for law reform on many issues, and climate change should be no exception. Indeed, with climate change increasingly being seen as a deeply cultural issue, and its solutions as cultural ones to do with changing the way we understand our world and our place in it, the role of cultural practitioners in helping to address it should also increasingly be seen as central. It is curious, then, how comparatively little artistic engagement with climate change has taken place, how little engagement with the arts the climate movement has attempted, and how little theoretical and critical analysis has been undertaken on the role of the creative arts in climate change action. Through a literature review and a series of interviews with individuals working in relevant fields in Australia, this study examines and evaluates the role of the creative industries in climate change action and places it in a historical and theoretical context. It covers examples of the kind of artistic and activist collaborations that have been undertaken, the different roles in communication, campaigning for law reform, and deep culture change that arts and artists can play, and the risks and dangers inherent in the involvement of artists, both to climate change action and to the artist. It concludes that, despite the risks, a deeper and more thoughtful engagement of and by the creative industries in climate action would not only be useful but is perhaps vital to the success of the endeavours.
Tim Hollo

Privacy and Trade Secrets

Frontmatter

Chapter 14. Environmental Sousveillance, Citizen Science and Smart Grids

Abstract
Enhancing water, energy, transport and communication infrastructure through a distributed or centralised sentience—‘smart grids’—involves questions about power. Those questions are as much about data, knowledge and environmental activism as they are about technical protocols for internet refrigerators, congestion pricing of road networks and remote reading of domestic electricity meters. This chapter explores who gets to collect, access and use data from smart grids. It highlights emerging debate about privacy, including systemic surveillance by grid operators/partners, and security. It discusses scope for environmental mashups that inform public policymaking and environmental activism but conflict with legal frameworks for the ownership of data and quarantining of knowledge. It looks ahead to ask whether citizens can establish participatory environmental monitoring networks that are independent of grids operated by network providers such as power and water utilities.
Bruce Baer Arnold

Chapter 15. Protecting and Promoting Clean Energy Innovation Through the Trade Secrets Regime: Issues and Implications

Abstract
This chapter explores the role that the trade secrets regime plays in protecting information relating to clean energy technologies and implications of such protection. It observes the increasingly important role played by trade secrets in protecting and promoting clean energy technologies form the embryonic phase to commercialisation phase. It is evident that secretly held valuable information, including renewable energy know-how, is subject to an ‘IP stealing arms race’, especially in relation to the global trade and cybersecurity arsenal. Therefore, it can be suggested to introduce more harmonised and stringent laws including the criminal sanctions for trade secrets misappropriations. However, this chapter argues that the policy makers should be more cautious over possible repercussions relating to over-protection and over-reliance on the trade secrets regime. These repercussions may include its impact on follow-on innovation, knowledge diffusion and technology transfer which are essential aspects in battling climate change. This chapter argues that trade secrets law should provide a balance in its effect which equally addresses the important protective aspects of clean energy technologies but also the protection of the need for knowledge diffusion and technology transfer.
Darshana Sumanadasa

Open Innovation

Frontmatter

Chapter 16. Energy Democracy, Renewables and the Paris Agreement

Abstract
This chapter examines the relationship between renewable energy, especially in the form of ‘energy democracy’ initiatives, and international law. Both instruments under the United Nations Framework Convention on Climate Change, including the Paris Agreement, and other international law instruments such as the Energy Charter Treaty and World Trade Organization regime, are considered, with particular regard paid to whether they explicitly mention renewable energy, and whether in practice they have encouraged the take-up and roll-out of renewables projects. The picture painted of this relationship between international law and renewables is a mixed one: while clean energy is mentioned in some of these instruments, there is limited research about their actual impact on the take-up of renewables, and even less research on the specific impact they may have on small scale energy democracy projects. Furthermore, inconsistent policy objectives of different areas of international law, especially between the climate change and trade liberalisation agendas, may inhibit the positive effects of including renewable energy as a topic of international law.
Angela Daly, Caitlin Archbold

Chapter 17. Climate Change and Open Data: An Information Environmentalism Perspective

Abstract
Increasingly, climate change mitigation will rely upon open data. In turn, open data flows from access to and use of the information commons. This chapter advances governance principles aimed at protecting and nurturing the information commons. These principles are distilled through the lens of information environmentalism, which encompasses the analytical frameworks of welfare economics, the commons, ecology, and public choice theory. Several emergent concepts are traversed, including informational national parks, information commons rights and the contemporary application of the public trust doctrine. Operationalising the governance principles advanced in this chapter is at once an intellectual and political project.
Robert Cunningham

Chapter 18. Open Government Data in an Age of Growing Hostility Towards Science

Abstract
Policy-making is inherently political, and bound up with different beliefs, values and viewpoints, as public policy scholars studying climate change policy know all too well. This is why there has, and always will be debate in policy-making circles about the relevance and reliability of particular sources of evidence (Wells, 2007). However, support for open government data to inform policy has generally been supported by the U.S. executive and legislative branches of government. President Reagan made Global Positioning System (GPS) data available for peaceful, civilian use in 1986. Earth observation data, including greenhouse gas (GHG) emissions, air quality and surface temperatures, is used by experts worldwide to address the growing demand for energy, food and water. The Trump administration (beginning January 2017), has broken with previously observed protocols, highlighting the fragility of open government data upon which science and policy experts depend. What is the impact of an ‘America First’ stance on open government data? Do federal agencies have the ability to protect and preserve environmental data as administrations transition? Does the President and Congress receive guidance on open government data policies and laws impacting the global transition to low-carbon development contemplated under the Paris Agreement?
Bernadette Hyland-Wood

Chapter 19. Elon Musk’s Open Innovation: Tesla, Intellectual Property, and Climate Change

Abstract
This chapter considers Elon Musk and his company Tesla, and evaluates their statements in respect of intellectual property, open innovation, and climate change. It is worth situating the story in the context of the growing literature on intellectual property and clean technologies. This paper considers Tesla’s shifting strategies in respect of patent law, policy, and practice. The work explores Tesla’s embrace of an open source philosophy, and the motivations behind this business strategy. The chapter analyses the larger issues about business development relating to electric vehicles and clean technologies. It examines how Tesla’s rivals have responded—particularly looking at Toyota Motors. This paper concludes by considering Tesla in light of larger initiatives in respect of clean technologies, renewable energy and climate change. Of particular note is sustainable transportation; the development of a Gigafactory; Elon Musk’s complementary work at SolarCity in promoting solar technologies; and the big battery project in South Australia. The chapter concludes with a consideration of Elon Musk’s advocacy for the adoption and implementation of the Paris Agreement 2015.
Matthew Rimmer

Plant Breeders’ Rights, Food Security, Access to Genetic Resources, and Indigenous Knowledge

Frontmatter

Chapter 20. Path-Breaking or History-Repeating? Analysing the Paris Agreement’s Research and Development Paradigm for Climate-Smart Agriculture

Abstract
This chapter provides an initial exploration and analysis of agricultural research and development paradigms under the Paris Agreement for climate-smart agriculture. Drawing on diverse bodies of literature, this chapter provides an examination of agricultural socio-technical regimes with a focus on how problems, means and solutions are constructed by three broad archetypes: the intensive agricultural paradigm, the Life-Sciences Integrated paradigm, and the Ecological-Integrated paradigm. Re-conceptualisation of climate-smart agriculture in line with the Ecological-Integrated Paradigm is positioned as a critical step towards climate justice. Through an examination of the Paris Agreement and related documents, this chapter argues that the Paris Agreement creates an enabling environment for the development of an agricultural socio-technical regime more consistent with the existing intensive agricultural model than with genuine climate-smart agriculture.
Hope Johnson

Chapter 21. Conserving Genetic Resources, Access and Benefit-Sharing, Intellectual Property and Climate Change

Abstract
Climate change threatens the survival of important genetic resources across the globe. This means that conservation is an imperative to maintain the diversity of genetic resources and avoid the permanent losses of these valuable results of evolution. The regulation of genetic resources is presently addressed through a patchwork of international and domestic regulations, with the key agreement being the United Nation’s Convention on Biological Diversity. This agreement and its protocols expressly recognise intellectual property claims in the context of conserving and exploiting genetic resources. This paper reviews the role and place of intellectual property and seeks to answer the question: is intellectual property actually helping to promote conservation? The paper concludes that existing regulations may be overly complex, and that the evolving regulatory schemes have now moved on to address complex issues of development, sovereignty, customary law and human rights.
Charles Lawson

Chapter 22. Benefit Sharing Under the REDD+ Mechanism: Implications for Women

Abstract
This paper examines benefit-sharing under the REDD+ Mechanism, focusing upon implications for women. In particular it will focus upon the competing motivations and constraints that are at play amongst the different networks and stakeholders involved (government, community and international institutions) and how these may manifest themselves in decisions about benefit-sharing claims. It also examines the importance of gender equity in ensuring socially effective REDD+ investments through a discussion of property rights, participation rights and accountability.
Rowena Maguire

Chapter 23. Northern Exposure: Alaska, Climate Change, Indigenous Rights, and Atmospheric Trust Litigation

Abstract
This chapter considers the atmospheric trust litigation in the case of Nelson Kanuk v. State of Alaska over the climate inaction of the State of the Alaska. The dispute is a compelling case study in respect of constitutional law, the public trust doctrine, climate change, intergenerational justice, Indigenous rights, and Indigenous intellectual property. The new litigation between Esau Sinnok and the State of Alaska promises to further refine and clarify issues in respect of climate change, human rights, and Indigenous interests. Such climate litigation highlights larger international legal issues in respect of Indigenous peoples and climate change. There has been debate over Indigenous rights and climate change during the discussions in respect of the United Nations Declaration on the Rights of Indigenous Peoples 2007, the Anchorage Declaration 2009, the Paris Agreement 2015, and the Bonn climate talks in 2017. In the future, no doubt Indigenous communities will seek to engage in climate litigation against governments and corporations in order to seek redress for climate injustice, as well as loss and damage.
Matthew Rimmer
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