Suman Sahai | India has task cut out — to arrange waiver of IPR on green tech at G-20

The government is compiling a long list of what it wants to take up in the period of its leadership of the G-20. Issues like infrastructure, sustainable development and resilient cities have already been flagged, as has climate change. One of the important subjects that India should build consensus on within the G-20 is the waiver of intellectual property rights on environment-friendly technologies so that these become affordable. Given the pace of climate change and the havoc it is wreaking, no course correction will be possible unless green technologies already developed by the industrial nations are made available to all countries.

Sharing environment saving technologies is absolutely necessary if India and other developing countries are to reduce emissions. Unfortunately, this technology transfer is not taking place at all or at affordable rates because it is shackled in patents owned by corporations and government agencies, chiefly in the United States.

Far from coming forth on granting broader access to green technologies, the US is fast-tracking patent applications for climate mitigating technologies. The USPTO (United States Patent and Trademark Office) recently became a technology partner to the global green-technology platform of the World Intellectual Property Organisation (WIPO), the WIPO GREEN. This is a platform of big technology companies, business groups, research institutes and intellectual property (IP) offices. Their mandate is facilitating commercial transactions in green technologies.

Let us be clear — the sharing of green technologies is not an act of charity by the West. It is their obligation, given the fact that their industries have poisoned the atmosphere to create global warming and climate change. As a result of the Industrial Revolution of the 18th and 19th centuries, starting in Britain and spilling over to the US, Western countries established factories and industrial complexes that kept growing in size and spewing smoke into the atmosphere.

These initial industries were based mainly on (often poor quality) coal and only later on oil and gas. Their furnaces belched out huge clouds of toxic smoke containing soot, dust and a cocktail of gases. These gases, like carbon dioxide and monoxide, sulphur and nitrogen oxides and methane, began to build up in the atmosphere, not just above their countries but across the world. The accumulation of these gases created the Greenhouse Effect, which caused the phenomenon of global warming, resulting in the extreme changes in the global climate that we are facing today.

The equation, therefore, is simple. Industrialised nations ravaged the atmosphere causing what appears to be irreversible damage to the global environment. Now the entire world is suffering from the consequences of global warming leading to climate change.

Industrialisation boosted the economies of the West, allowing them to make a lot of money. Once they began to suffer from the effects of air pollution, they used their surplus wealth to develop clean air technologies to reduce toxic emissions. Then they put these clean air technologies behind the walls of patent protection. Now all others have to pay lots of money to access these green technologies. Is that fair? No.

It is this injustice that led to the enunciation and acceptance of the polluter pays principle in the 1992 Rio Declaration on Environment and Development. This essentially says that those who have polluted the atmosphere must pay for cleaning it up. It also says that the polluter must pay compensation to those countries which are facing the worst brunt of climate change. These are the developing countries who have not polluted the atmosphere. The “polluter pays” principle is at the heart of the “loss and damage “agreement reached at the COP 27 held in Egypt in November 2022. This aims to provide funding for vulnerable countries hit hard by climate disasters.

To negotiate a waiver of IPR (Intellectual Property Rights) on green technologies, India needs to invoke existing clauses in international agreements like the UNFCCC (UN Framework Convention on Climate Change) which emphasises that, to achieve the goal of keeping global temperature rise below two degrees Celsius this century, green technology will be crucial to help countries achieve this objective. Multilateral platforms governing IPR are key to provide the mechanisms for the transfer of green technologies. Chief among these is Article 66.2 of the WTO-TRIPS which says… “Developed country members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country members in order to enable them to create a sound and viable technological base”.

We do not want a repeat of cases like that which happened when the ozone hole was linked to ozone destroying chemicals used in refrigeration that had to be replaced. According to the 1989 Montreal Protocol on Substances that Deplete the Ozone Layer, all countries had to phase out the production and useof ozone depleting chemicals. In order to be compliant with the Montreal protocol, Indian companies asked the US companies for such patented replacement technologies and had to pay up the exorbitant sum of $25 million some 30 years ago.

India should use its G-20 presidency to use the flexibilities on technology transfer given in international forums to negotiate the sharing of green technologies for the global good. This sharing is not meant to benefit the developing countries alone; it is to stop the wrecking ball of climate change from causing escalating damage to every living thing that inhabits planet earth.