Intellectual Property in the Way of a Clean and Green Environment: Is Licensing the Solution?

Technology in the commercial context would mean 'knowledge of how to make use of the factors of production, to produce goods or services for which there is an economic demand'. Technology innovation both hurts and helps the environment. Therefore, intellectual property, by promoting innovation may be both good and bad for the environment. However, technology, as far as Environmentally Sound Technologies (ESTs) are concerned, works for the benefi t of the environment. ESTs can be considered to be those benefi cial environmental technology innovations which provide a net environmental benefit compared to existing technologies in terms of resources consumed, wastes produced, and risks to human health and the environment, for example, waste management technologies for solid and hazardous wastes, products and methods for cleaning up pollution, recycling equipment, and processes. 

There are national attempts to move towards cleaner sources of energy and away from fossil fuels not just because of the environmental concerns surrounding the use, but also to avoid the supply (of fossil 100 Energy Law and Policy fuels) problem to some extent. Clean, renewable energy is thus not only important from the environmental protection point of view, but also has enormous political and national security implications. Currently, all energy produced by green technologies—wind, solar, hydroelectric—is
signifi cantly more expensive than fossil fuels. Considering the high cost involved, individual consumers would not embrace cleaner technologies unless the cost is at par with traditional technologies available to them. For instance, unless the Government comes up with a mandate to run all vehicles on CNG and no other fuel, no users would switch to CNG operated vehicles considering higher cost involved in use of CNG over other fuels. This leaves a heavy burden on the State to create a market for clean and green energy. However, considering the high cost involved, access to such green technologies, for countries which do not have capability to come up with technology of their own, becomes
an expensive aff air, thereby augmenting the access problem. Promoting greater access to and transfer of these technologies, in particular of Environmentally Sound Technologies (ESTs), was already a central concern at the Rio Earth Summit in 1992 and its important outcome, the Agenda 21 on sustainable development. In this context it is imperative to analyse the existing standards and fl exibilities under various legal frameworks in general and Trade Related Aspects of Intellectual Property Rights (TRIPS) in particular.

While discussing the various challenges posed by climate change on the world at large, the role of Intellectual Property (IP) in addressing these challenges cannot be ignored. This is essentially because IP is intricately linked with innovation and is often considered a prerequisite of it and thus any innovation in climate change technologies would include various IP rights in its fold. Transfer and diff usion of environmentally sound technologies (ESTs) or climate change mitigation technologies (MTs), as it may be called, to developing countries is an essential part of any effective international response to global climate change challenge.