Open for Climate Justice: Intellectual Property, Human Rights, and Climate Change

Matthew Rimmer

International Open Access Week 2022

Abstract

This commentary highlights the history of conflict and division over intellectual property, technology transfer, and clean technologies during international climate negotiations. It considers the scope for open licensing to make environmental knowledge, data, technology, and intellectual property more widely accessible and available in order to better address climate adaptation and mitigation, as well as loss and damage. There has been a renewed interest in open access models for climate research, knowledge, and data. Creative Commons, SPARC and EIFL have launched a 4 year Open Climate Campaign, with funding from the Arcadia Foundation. The theme for the Open Access Week 2022 is Open for Climate Justice. Patent pledges have become increasingly popular as a means of sharing technologies. The Low Carbon Patent Pledge was launched in 2021 by Hewlett Packard Enterprise, Microsoft, and Facebook. The Pledge is designed to help disseminate clean technologies, subject to intellectual property rights. Meanwhile, the Government of Canada has experimented with patent collectives in the field of clean technologies. Open government policies have increasingly focused upon climate data, knowledge, and technologies. The Biden administration has been seeking to promote open innovation in the United States. At an international level, there has been discussion about the relationship between open science and human rights. The UNESCO Recommendation on Open Science provides a framework for the further development of policies in this field. While such new open source projects have promise, there is a need to scale up initiatives on open access, open data, open science, and open innovation to better address the challenges of climate change, biodiversity loss, and sustainable development.

Introduction

Over the past few decades, international climate negotiations have hosted debates over intellectual property, technology transfer, and climate change (Rimmer, 2011; Rimmer, 2018a; Rimmer, 2019; Rimmer, 2021). Developed nations — along with technology developers — have demanded high standards of intellectual property protection and enforcement in respect of clean technologies. Mid-tier countries have called for better intellectual property licensing mechanisms, as well as a system of better climate finance. Developing countries have expressed concerns about the lack of climate finance to secure clean technologies. Such nations have called for wholesale reforms of intellectual property — especially in terms of flexibilities — in order to better achieve climate action and sustainable development. Least developed countries, small island states, and countries vulnerable to climate change have called for clean technologies to be openly shared and no doubt dedicated to the public domain. Given such divisions, international climate negotiations have struggled to reach a consensus on intellectual property and technology transfer between developed nations, and developing countries, least developed nations, and nations for vulnerable to climate change and global warming. No doubt the COP27 negotiations in Egypt will feature a similar debate as to whether there should be text on intellectual property, technology transfer, and climate change.

In the meantime, there has been increasing intellectual property litigation over clean technologies, green energy, and renewables. In the field of patent law, there have been conflicts over patent ownership of hybrid cars, solar technologies, and climate-ready crops. There have also been disputes under other regimes of intellectual property. There has been design law disputes over electric trucks. In the field of trade mark law, there has been debate over the use of green trade marks, eco-labels and certification systems. Under consumer law, there have been class actions and regulatory intervention over greenwashing by companies. Increasingly, clean technology companies have also taken action to protect confidential information and trade secrets against rivals and competitors. There have been trade disputes between the United States and China over intellectual property and climate change.

In this context of escalating conflict over intellectual property and clean technologies, there has been consideration of other co-operative measures, which could help promote the sharing of intellectual property, knowledge, and data related to the environment, biodiversity, and climate change. This commentary considers the scope for open licensing to make environmental knowledge, data, technology, and intellectual property more widely accessible and available in order to better address climate adaptation and mitigation, as well as loss and damage. Part 1 considers the Open Climate Campaign launched by the Creative Commons, SPARC and EIFL. Part 2 explores the establishment of the Open Carbon Patent Pledge as a mechanism to help share clean technologies. It also considers the new patent collective established by the Canadian Government — the Innovation Asset Collective. Part 3 examines the Open Government policies of the new Biden administration in the field of climate data and information. Part 4 focuses upon the connections between Open Science and Human Rights — with a particular emphasis on climate justice. In particular, it highlights the UNESCO Recommendation on Open Science. This commentary concludes that there is a need to scale up open source initiatives in respect of climate data, knowledge, and technologies — particularly given the pressing need to engage in climate adaptation and climate mitigation.

1. The Open Climate Campaign

The Creative Commons movement was established to use open licensing to help share copyright work. The Science Commons was a spin off project from the Creative Commons. The Science Commons was designed to encourage the sharing of research, data, and inventions in the field of science. In 2009, the Science Commons established an environmental project with Nike Inc. and Best Buy called GreenXchange (Rimmer, 2011). Under the banner of GreenXchange, there was some sharing of patents by companies such as Nike Inc., Best Buy, and Yahoo. However, the project seemed to be short-lived. The Science Commons was folded back into the Creative Commons. The Creative Commons movement seemed to lose its interest in questions around the environment, sustainable development, and climate change for a while.

The Creative Commons slowly seemed to re-engage with issues around the environment, sustainable development, and climate change. The Sustainable Development Goals have become an important international framework — and the Creative Commons movement has particularly focused on education and access to knowledge within that framework.

There has been a renewed interest in open access models for climate research, knowledge, and data. In 2022, Creative Commons, SPARC and EIFL have launched a 4 year Open Climate Campaign, with funding from the Arcadia Foundation. The project highlights: ‘While the existence of climate change and the resulting loss of biodiversity is certain, knowledge and data about these global challenges and the possible solutions, mitigations and actions to tackle them are too often not publicly accessible’ (Granados and Green, 2022). The project stresses: ‘Addressing a challenge as dramatic as the climate crisis and its effects on global biodiversity will require that everything we know is available to everyone to understand and augment’ (Granados and Green, 2022). The project highlights: ‘The Campaign will go beyond just sharing climate and biodiversity knowledge, to expand the inclusive, just and equitable knowledge policies and practices that enable better sharing’ (Granados and Green, 2022).

Since the award of the grant, there has been an elaboration of the aims and goals of the Open Climate Campaign (2022): ‘The goal of this multi-year campaign is to promote open access to research to accelerate progress towards solving the climate crisis and preserving global biodiversity’. There are a number of steps that the Open Climate Campaign is taking to make the open sharing of research outputs the norm in climate science. The Open Climate Campaign highlights the need to bring attention to the issue of access to knowledge on climate change. The Open Climate Campaign seeks to support the open access review of climate and biodiversity research. The Open Climate Campaign (2022) calls for a clearance of legal and policy barriers: ‘We will create a strategic road map for breaking down and circumventing legal and policy barriers to support new open access incentives.’ The Open Climate Campaign (2022) observes: ‘We will also adapt existing and/or adopt new policies and incentives with governments and institutions to clear barriers to open knowledge.’

The Open Climate Campaign (2022) wants to help national governments to adopt and implement strong open access policies: ‘We will identify opportunities to engage national governments about opening publicly funded research outputs on climate and biodiversity, and help governments create, adopt and implement equitable open access policies.’ The Open Climate Campaign hopes to help research funders to adopt and implement strong open access policies.

The Open Climate Campaign seeks to encourage publishers to make their climate and biodiversity research open access. They also hope to help environmental organizations to adopt and implement strong open access policies. The Open Climate Campaign wants to engage with and contribute to international frameworks on climate and biodiversity.

The theme for the Open Access Week 2022 is Open for Climate Justice. The convenors have commented: ‘This year’s theme seeks to encourage connection and collaboration among the climate movement and the international open community’ (Open Access Week, 2022). The organisers observed: ‘Sharing knowledge is a human right, and tackling the climate crisis requires the rapid exchange of knowledge across geographic, economic, and disciplinary boundaries’ (Open Access Week, 2022).

2. Open Innovation and Climate Technologies

There has been some experimentation with open licensing in respect of clean technologies. Back in 2011, the author surveyed key proposals to share and distribute intellectual property relating to clean technologies through various co-operative means (Rimmer 2011). In 2018, the author put together a collection, which explored further developments in respect of intellectual property and climate change, with a particular focus on open data, open licensing, open innovation, and open government (Rimmer, 2018a). Writing now in 2022, it is notable that a number of the past open source projects have run their course, and there are a range of new emerging initiatives in this field.

Previously, there was interest in the use of patent pools to encourage the co-operative and collective utilisation of patents in respect of clean technologies. In 2008, the World Business Council for Sustainable Development established an Eco-Patent Commons to share intellectual property in respect of environmental knowledge and technology (Rimmer, 2011). David Kappos from IBM was the driving force behind the venture. The Eco-Patent Commons lost energy with the departure of David Kappos to the USPTO. The Eco-Patent Commons did not really scale up, and reach a critical mass in terms of technology developers and technology users. In the end, the Eco-Patent Commons has folded in 2016, with its technologies being distributed to WIPO GREEN (2015, 2022). Jorge Contreras, Bronwyn Hall and Christian Helmers (2018) have reflected upon the rise and fall of the Eco-Patent Commons, concluding that the project was a worthy failure: ‘This worthwhile effort should be viewed as an invitation to experiment further with, and to improve upon, the patent commons model both in the area of green technologies and beyond.’

There was a spike in interest in open licensing of clean technologies — when Elon Musk announced that Tesla would make its patents on electric vehicles available for open licensing (Rimmer, 2018b). However, this legacy proved to be somewhat more complicated than what the announcement would have suggested. There has been criticism that the terms of open licensing offered by Tesla are much more restrictive than necessary. There has not been much in the way of take-up of Elon Musk’s open licensing offer. Moreover, Tesla has been willing to enforce other forms of intellectual property — particularly in respect of trade secrets and confidential information against former employees and rival firms and competitors (Rimmer, 2018b). Thus, while Tesla does make the offer of open licensing in respect of some technologies, the company has also pursued closed, proprietary forms of intellectual property as well.

Professor Jorge Contreras from the University of Utah has undertaken extensive research on patent pledges — including in the field of clean technologies (Contreras, 2015; Contreras and Jacob, 2017; Contreras, 2018). Patent pledges have become increasingly popular as a means of sharing technologies. The Low Carbon Patent Pledge was launched in 2021 by Hewlett Packard Enterprise, Microsoft, and Facebook. The Pledge is currently administered by the InfoJustice program of the American University. Ben Altern from Hewlett Packard Enterprise has argued that making green patents free is a ‘force for good’ (Mehta, 2021). The Low Carbon Patent Pledge has been supported by the World Economic Forum.

The Low Carbon Patent Pledge aspires to share clean technology applications: ‘By making patents with low carbon technology applications freely available to all, we hope to encourage and accelerate the innovation humanity needs to avert a climate disaster’ (Low Carbon Pledge, 2022). The Low Carbon Patent Pledge was adopted by JPMorgan Chase, Micro Focus and Majid Al Futtaim in 2021. UPS, Lenovo, Alibaba, VIAVI Solutions and the Ant Group joined the Low Carbon Patent Pledge to accelerate climate solutions in 2022. Most recently, in August 2022, Panasonic has joined the Low Carbon Patent Pledge. At the time of writing (October 2022), 564 patents have been pledged by a dozen partners across thirteen countries under the Low Carbon Patent Pledge. It remains to be seen whether this venture will reach a critical mass. At present, the participants seem largely drawn from the information technology sector — there needs to be greater involvement from clean technology developers, energy companies, and utilities in the future.

There are of course limits to voluntary patent pledges by technology developers. Some commentators, such as Samuel Clayton (2020), have argued that there needs to be greater reform — with broader intellectual property exceptions and flexibilities in the field of climate change.

In 2020, the Government of Canada established a patent collective aimed at clean technologies. The Innovation Minister at the time, Navdeep Bains, was hopeful about the initiative: ‘It has a lot of potential to grow and create opportunities for Canadian businesses’ (Silcoff, 2019). The Innovation Asset Collective (2022) is an independent, membership-based not for profit, which is designed to assist Canadian small and medium-sized enterprises in the clean tech sector with their intellectual property needs. Jim Balsillie (2020) was supportive of the initiative: ‘Digital policy infrastructures such as IP collectives enable entrepreneurs and companies to access collective IP assets and use them to fortify their IP war chests, and to address freedom-to-operate issues with competitors who block their access to new markets.’

There has been increasing interest in the use of open source licensing in the field of clean technologies. In The Future We Choose, Christiana Figueres and Tom Rivett-Carnac (2020: 65) have expressed their hope that there would be greater use of open source strategies in respect of clean technologies: ‘As a next step, one could imagine a world of “open source everything”, an open approach in every field of human endeavour, where competition is no longer the operating principle but rather collaboration.’ Figueres and Rivett-Carnac (2020: 65) elaborate that ‘this approach explicitly promotes learning and growth throughout the system.’ Figueres and Rivett-Carnac (2020: 65) observe that an open source system ‘allows us to constantly teach one another, thereby exponentially increasing our capacity to co-create knowledge and share goods and services with open access, used by everyone for the benefit of all.’

There has also been discussion of placing intellectual property in the public domain. The Climate Action Network International (2012), least developed countries, and countries vulnerable to climate change have observed that clean technologies should be treated as global public goods — and made accessible and available to all. There have been discussions as to whether there should be greater recognition of public goods in international agreements (Heilprin, 2022). The International Council on Human Rights Policy (2016: 155) has argued: ‘The transfer of clean energy-generating and energy efficiency technologies, including know how, within a non-prohibitive IP regime must be seen as indispensable to the satisfaction of basic human rights in a climate-constrained future.’

There has been pressure for a reform of rules on intellectual property and climate change in international trade law (Rimmer, 2016). However, it has proven difficult to reform the international intellectual property system, even in the midst of a global emergency. Proposals for a TRIPS Waiver during the COVID-19 crisis were stymied by developed nations, such as Germany, the United Kingdom, and Switzerland, as well as vaccine developers, pharmaceutical drug companies, and the biotechnology industry. There have been parallel proposals mooted for a waiver of intellectual property rights in respect of clean technologies in the midst of the climate crisis — but no doubt such concepts would meet with resistance in international trade forums (Deane, 2021).

3. Open Government and Climate Change

In the area of climate change, there has been a call for information environmentalism — particularly in respect of the governance of data (Cunningham, 2018).

Travis Tai and James Robinson (2018) have called for the adoption of Open Science strategies to enhance climate change research: ‘Given that global efforts to combat climate change impacts will require both rapid collaborative research and communication among academics, policymakers and the public, climate change research is in urgent need of strong Open Science stewardship.’

The Obama Government made a number of innovations in respect of open government policies in the field of the environment and climate change. In particular, there was a strong open climate data movement. Bernadette Hyland-Wood (2018) has documented a variety of strategies deployed by the Obama administration to encourage the sharing of climate data and knowledge.

The Trump Administration was contemptuous of climate science, and undermined many of the efforts to make climate knowledge and technology available. Bernadette Hyland-Wood (2018) has discussed the problem of disappearing environmental data under the Trump Administration.

The Biden Administration has shown a renewed interest in pursuing open data, open government, and open science policies.

In January 2021, President Joe Biden issued an Executive Order on Tackling the Climate Crisis at Home and Abroad. The executive order included a call for Federal agencies to develop ‘Climate Action Plans and Data and Information Products to Improve Adaptation and Increase Resilience’

The National Climate Taskforce Initiative has sought to provide more accessible climate information and decision tools: ‘With the climate crisis impacting every region and economic sector, federal agencies are working together to launch a coordinated effort to provide more robust information services that reach all communities.’

In September 2022, the Biden-Harris administration has launched a new climate portal to help communities navigate climate change impacts. The portal will provide a real-time monitoring dashboard, and assessments of local climate exposure. It will also centralize federal data, programs, and funding opportunities available to support climate resilience efforts.

Alondra Nelson, deputy assistant to the president and deputy director for Science and Society at the White House Office of Science and Technology Policy, has been particularly influential in carrying forward such open science policies. In a recent piece, ‘Public Access to Advance Equity’, Alondra Nelson — and co-authors Christopher Marcum and Jedidah Isler (2022) — stressed: ‘The American public should have access to the knowledge produced by the nation’s research and innovation enterprise.’ They specifically referred for the need for open research to facilitate climate action: ‘To live up to the administration’s national aspirations — to cut in half… greenhouse gas emissions,… [and] foster good and sustainable jobs in the coming decades, and more — the country first has much to learn from the open science movement.’ Alondra and her collaborators comment: ‘Open science has been part of ongoing efforts to expand public access, including democratizing the ability to set research agendas, to ask the important questions, and to generate and use knowledge.’

In a speech to the G7 in 2022, Alondra Nelson also discussed the importance of open science: ‘From our educations, and from our experiences, we know that openness is crucial to discovery — because science doesn’t move forward unless we publish, share, and communicate our knowledge and breakthroughs, so others can build on them’ (The White House, 2022a). She emphasized: ‘Without openness, fundamental research would never realize its potential.’ Nelson maintained that ‘openness is crucial to building and rebuilding public trust — in science, and in governments.’ She has encouraged other nation states to adopt similar policies in respect of open science.

Nelson has also been supportive of Open Innovation networks, noting: ‘Citizen science, prize competitions, challenges, and crowdsourcing bring more people, from more communities and more backgrounds than ever before into the missions of Federal science’ (The White House, 2022b). She commented: ‘These tools allow government to be more grounded in the priorities of the communities we serve’. Nelson noted that such open innovation initiatives ‘make government more agile and responsive to current and future problems we’ve yet to solve.’

4. Open Science and Human Rights

In 2020, there was a joint appeal for open science by OHCHR, CERN, UNESCO and WHO (WHO, 2020). The Geneva Call reaffirmed the ‘the fundamental right to enjoy the benefits of scientific progress and its applications and advocate for open, inclusive and collaborative science.’ The statement noted that ‘Open Science can reduce inequalities, help respond to the immediate challenges of Covid19 and accelerate progress towards the implementation of the 2030 Agenda for Sustainable Development.’ The Geneva Call emphasized: ‘The core idea behind Open Science is to allow scientific information, data and outputs to be more widely accessible (Open Access) and more reliably harnessed (Open Data) with the active engagement of all stakeholders (Open to Society).’ The Geneva Call observed: ‘The Open Science movement has emerged from the scientific community and has rapidly spread across nations, calling for the opening of the gates of knowledge.’ The Geneva Call noted: ‘In a fragmented scientific and policy environment, a stronger global understanding of the opportunities and challenges of Open Science is needed.’

As UN High Commissioner for Human Rights, Michelle Bachelet (2020) commented: ‘Worldwide people need States, international bodies, science and medical institutions and practitioners to ensure the broadest possible sharing of scientific knowledge, and the broadest possible access to the benefits of scientific knowledge’. She noted that open access to knowledge ‘is essential to the combat against climate change.’ Bachelet was concerned about the spread of climate misinformation, observing: ‘Everyone’s right “to share in scientific advancement and its benefits” has been attacked in recent years, particularly in the context of discussion of climate change.’ She warned: ‘This deliberate introduction of doubt about clear and factual evidence is catastrophic for our planet’. Bachelet commented: ‘This is a matter of saving individual lives; the future of communities and nations; and our planet.’ She concluded that ‘open science can help to unlock vital keys to recovery, and a better world.’

In 2021, the 41st session of the General Conference of UNESCO adopted the UNESCO Recommendation on Open Science. The preamble of the text recognised ‘the urgency of addressing complex and interconnected environmental, social and economic challenges for the people and the planet, including poverty, health issues, access to education, rising inequalities and disparities of opportunity, increasing science, technology and innovation gaps, natural resource depletion, loss of biodiversity, land degradation, climate change, natural and human-made disasters, spiralling conflicts and related humanitarian crises.’ The preamble also noted ‘the vital importance of science, technology and innovation (STI) to respond to these challenges by providing solutions to improve human well-being, advance environmental sustainability and respect for the planet’s biological and cultural diversity, foster sustainable social and economic development and promote democracy and peace.’ The preamble highlighted ‘the transformative potential of open science for reducing the existing inequalities in [Science, Technology, and Innovation] and accelerating progress towards the implementation of the 2030 Agenda and the achievement of the Sustainable Development Goals (SDGs) and beyond.’

The recommendation noted that ‘the practice of open science, anchored in the values of collaboration and sharing, builds upon existing intellectual property systems and fosters an open approach that encourages the use of open licensing, adds materials to the public domain and makes use, as appropriate, of flexibilities that exist in the intellectual property systems to amplify access to knowledge by everyone for the benefits of science and society and to promote opportunities for innovation and participation in the cocreation of knowledge.’ The recommendation further noted that ‘open science practices fostering openness, transparency and inclusiveness already exist worldwide and that a growing number of scientific outputs is already in the public domain or licensed under open license schemes that allow free access, re-use and distribution of work under specific conditions, provided that the creator is appropriately credited.’

The text of the recommendation discussed the aims and objectives of the recommendation; it provides a definition of open science; it discusses the core values and guiding principles of open science; it highlights areas of action; and considers mechanisms for monitoring progress in respect of open science.

The statement has asked ‘Member States [to] apply the provisions of this Recommendation by taking appropriate steps to give effect within their jurisdictions to the principles of this Recommendation.’ The statement requested ‘Member States [to] bring this Recommendation to the attention of the authorities and bodies responsible for science, technology and innovation, and consult relevant actors concerned with open science.’ The statement ‘further recommends that Member States collaborate in bilateral, regional, multilateral and global initiatives for the advancement of open science.’

Conclusion

This commentary has noted the historic stalemate over intellectual property and climate change in international climate talks. It has discussed the importance of open licensing models to achieve climate justice. This commentary has explored a number of new initiatives relying upon open source principles, strategies, and technologies. The Open Climate Campaign represents a new effort to encourage the use and adoption of open access model to share climate knowledge, data, and information. The Low Carbon Patent Pledge seeks to encourage co-operative behaviour in respect of intellectual property relating to clean technologies. The Canadian Government has established a patent collective to improve the development and dissemination of clean technologies. The Biden administration has been seeking to apply models of Open Government to better address its goals in respect of climate action and sustainable development. Moreover, there has been further discussion at an international level about the relationship between open science and human rights, culminating in the UNESCO Recommendation on Open Science. While these new initiatives are promising, there is an urgent demand to scale up open source experiments in the field of climate data, knowledge, and technology — given the magnitude of the climate crisis.

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Biography

Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Business and Law, at the Queensland University of Technology (QUT). He has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, Indigenous Intellectual Property, and intellectual property and trade. He is undertaking research on intellectual property and 3D printing; the regulation of robotics and artificial intelligence; and intellectual property and public health (particularly looking at the coronavirus COVID-19). His work is archived at QUT ePrints, SSRN Abstracts, Bepress Selected Works, and Open Science Framework.

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Matthew Rimmer

Professor of Intellectual Property and Innovation Law, QUT. #Copyright #Patent #Trademark #plainpacks #Access2meds #SDGs #Climate #IndigenousIP #trade #TPP