The Role of Intellectual Property Rights (IPR) in Technology Transfer / Technology Cooperation

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Overview

Intellectual property (IP) is an important factor for innovation and technology cooperation. There is an ongoing discussion about the need of a global policy to accelerate renewable energy technology (RET) innovation and support business, governmental, and humanitarian goals. In the Bali conference (COP 13), article 1 (d) of the final document demands „Effective mechanisms and enhanced means for (…) scaling up of the development and transfer of technology to developing countries Parties in order to promote access to affordable and environmentally sound technologies“.

From the perspective of developing countries, industrialised countries have to provide the relevant technologies or at least the rights to use them if they want them to join their efforts of combating climate change. In certain cases governments from developing countries could force companies in industrialised countries to provide licenses in areas of national security (compulsory licenses), e.g. to combat climate change. For the owner of the licence this could mean not to be able to recuperate large investments in the development of sustainable energy technologies like carbon sequestration, off-shore wind farms and bio fuels. This unclear situation could create barriers for the dissemination of sustainable energy technologies. This political debate is part of a current polarized discourse focusing on either the necessity of (strong) IP protection for innovation (as an incentive) or the impeding effect of IP protection on innovation (innovation is seen to be discouraged by high upfront costs and unequal distribution of ownership of IP in the North).


Only a few models and initiatives go beyond this polarized view and aim at providing unbiased and evidence-based information on how policymakers in developing countries can properly calibrate IP systems to maximise innovative potential, and how innovators and creators can adapt or work around suboptimal (particularly too strict) IP environments. See below for a description of the open source / open innovation models, which enables different levels of openness that reduce exclusive control over knowledge and potentially increase participation, cooperation & collaboration in innovative processes as well as innovative business models.


International Policies

In light of the debate above, neither the , the United Nations nor any of their related organizations has developed intellectual property policies on sustainable energy.

There are at least three reasons why governments of industrialized countries are reluctant to lead the effort to develop a coherent global policy on intellectual property for sustainable energy:

  • No existing precedent for developing such a policy, as intellectual property policies have been developed on a national level or on a one-to-one treaty level
  • Strong interest in withholding information about the economic costs and benefits of patents.
  • Most nations with strong intellectual property policies see patents as an individual right, protected by the rule of law.


As long as technology exchange is limited to small, decentralized technologies, targeting mainly (poor) developing countries, the question of IPRs is not crucial for its success, but it might hinder foreign investments and cooperation with private companies from industrialized countries. For the least developing countries, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement is still not applied and will become a binding rule only from 2013 on.


Alternative Intellectual Property (IP) Concepts Based on Openness

While a political framework is still missing, companies and organizations have been making use of two alternative intellectual property concepts: patent pools and the open source / open innovation model.


Patent Pools

Patent pools are consortiums of companies that band together to allow joint, non-exclusive licensing of intellectual property. They make sense in sustainable energy development because of the large number of organizations attempting to develop similar technologies or products that must work seamlessly together within the existing power infrastructure, in particular important for decentralized generation. Research suggests, that international initiatives such as the "Eco-Patent Commons" have the potential to promote and encourage cooperation between businesses that pledge the patents and other innovators to advance and develop solutions benefiting the environment. (see UNU-Paper in section resources).


Open Source

The idea of the open source / open innovation approach is to liberally license the science or technology so that anyone can modify, add and reuse the technology. As Wikipedia notes, the concept of open source is built on “practices in production and development [of products] that promote access to the end product's source material”. In short, an open source licence is a “licence to innovate”; it grants all necessary rights to study, use, remix and redistribute an improved work – under the condition that the results will once again be available to all parties interested. It is important to note, that in this sense an open source approach is not equivalent to releasing knowledge or technology in the public domain: Open Source crucially depends on so called "copyleft" licensing, whereby any resulting improvements or adaptations are also bound by the same copyleft licensing scheme and need to be "re-shared". This viral status of open source provides a large potential for rapidly building a vast pool of technological innovation through "commons-based peer production" (Yochai Benkler, see wikipedia entry) as part of a "knowledge commons" (see wikipedia entry) At the same time this viral obligation to "re-share" gives some level of protection against unlicensed use of intellectual property by competitors (who are not sharing).


Other advantages of the open source models include a large pool of potential contributors to innovation, as "most of the brightest people work somewhere else". The open source model works because many new design ideas are aggregates of several prior designs. As a result, they require expertise from a wide variety of engineering and other disciplines. This line of thought is related to the paradigm of "open innovation". According to Henry Chesbrough open innovation is about “internal as well as external ideas, and internal and external paths to markets”. According to the open innovation paradigm, innovation is no longer a confidential issue, but rather about sharing insights with anyone interested in the matter. As the example of Free and Open Source Software is indicating, such "crowdsourcing" (see wikipedia entry) has the potential to induce new forms of “private-collective innovation” (van Hippel/von Krogh 2003), which provides both viable incentives for innovation and alternative business models as well as an underlying “public good” or commons good.


Other aspects of IP in Technology Transfer / Cooperation

a) Quality control through IP protection: Although investments of companies in research and development (R&D) are seen as the main rationale for IPRs other aspects play an important role. Handing out technical drawings without the required assistance on how to use them is of no benefit for the user but might easily put at risk the good reputation of the technology. To ensure a reasonable quality level, trainings and feedback rounds to check the produced quality should be obligatory. Manufacturers using this design should be registered and should give a feedback on how many units they produced and installed at which sites (providing data on site characteristics), and which experiences and modifications regarding the design they made. Under an open source approach, such feedback loops would be embedded in the licensing itself.


b) Capacity Building and IP: Higher standards of IPR protection in developing countries can also have negative consequences for capacity building efforts: Often, researchers and enterprises lack access to innovation-relevant information and open learning, education as well as access to knowledge. In this sense, smart capacity building initiatives can make use of the power of ‘Open’ approaches to educational provision. In particular, open licensing of technical drawings, training material and how-to guides support the „Capacity to build capacity“ as follows.

  • More impact and ownership: Multipliers and local Innovators are „free“ to reuse and build on training material, they „own“ it
  • Access to large repositories of open educational resources (e.g. this wiki, Wikipedia etc) – such material requires use of open licensing („share alike“)
  • Input to own material through community: „Free“ updates, sharing of third party material, contribution to global pool of knowledge commons (e.g. this wiki )
  • Easier Monitoring of impact (open sharing allows open tracking)
  • Additional capacity building effects for multipliers: „Learning by updating the material“ and „build-up of peer-to-peer networks around the open material“
  • Decreased risk of distortion of competition: public sector material can be freely accessed by private sector competitors (commercial and non-commercial use by all parties is possible, unless a „non-commercial“ clause is used in the open license). At the same time the developmental goals can be achieved in terms of „capacity to build capacity“
  • Promotional effects: Attribution of originating Capacity Building Initiative in all future versions of training material (the „MIT“ effect)
  • Sustainable use of material and local business models are promoted: commercial and non-commercial use by originating institution and by partners / local multipliers is assured

Further Information

General:


Background information on debate on IPRs and clean energy / Green Technology:

  • United Nations Environment Programme / European Patent Office (EPO) / International Centre for Trade and Sustainable Development (2010): Patents and clean energy: bridging the gap between evidence and policy - Final report. Online at documents.epo.org
  • Maastricht Economic and social Research institute on Innovation and Technology (UNU‐MERIT) (2011): Innovation and Diffusion of Clean/Green Technology: Can Patent Commons Help? Bronwyn H. Hall and Christian Helmers. Online at merit.unu.edu (as of : 5.7.2011)


Background information on general debate on IPRs and NDAs:

Wikipedia.: wikipedia - Non-disclosure agreement


Background information on open source /open innovation approaches:

  • African Copyright and Access to Knowledge (ACA2K) Project (2010): Copyright & A2K in Africa: Access to knowledge in Africa The role of copyright. Johannesburg. Online at: aca2k.org
  • Chesbrough, Henry (2003): Open Innovation: The New Imperative for Creating and Profiting from Technology. Boston.
  • Hess, Charlotte /Ostrom. Elinor(2007): Understanding knowledge as a commons. Cambridge.
  • Von Hippel, Eric / von Krogh, Georg (2003): Open Source Software and the 'Private-Collective' Innovation Model. Organization Science, 14(2), p. 209-223. Online at: web.mit.edu
  • Foray, Dominique (2009): Technology transfer in the TRIPS age. The need for new types of partnerships between the least developed and most advanced economies. ICTSD Programme on IPRs and Sustainable Development. Issue Paper No.23. Online at: www.iprsonline.org
  • FOSSFA / InWEnt (Ed.) (2009): African FOSS Business Models. A Series of Advanced Training Modules: ict-innovation.fossfa.net and
  • InWEnt (2008): FOSS Business Models Materials: it-inwent.org
  • Lerner, Josh / Tirole, Jean (2004): The Economics of Technology Sharing: Open Source and Beyond. NBER Working Paper Series. Working Paper 10956. Cambridge. Online at: opensource.mit.edu
  • Netzwerk Freies Wissen (2009): Wem gehört das Wissen der Welt. Wissensallmende Report 2009: wissensallmende.de
  • OECD (2008): Open Innovation in global networks. Paris.
  • Seibold, Balthas (2008): Die globale digitale Kluft ist eine Lern- und Innovationskluft. In: Internetökonomie und Ethik. Berlin. Online at: download.webwort.de
  • Seibold, Balthas / Winter, Phillip (2010): Freedom to innovate. In: Development + Cooperation / D+C, 2010/04, p. 170-172. Online at: inwent.org
  • Seibold, Balthas (2010): Unleashing Open Innovation Systems. International Experiences and Potentials for Developing Countries. In: gtz / Working Group on ‘Promoting Innovation Systems’ (Ed.): Strengthening Innovation Systems in the Context of Development Cooperation. Documentation: Eschborn, p. 87 – 92. Online at: gtz.de
  • UNCTAD (2007): Knowledge, Technological Learning and Innovation for Development. Geneva.


References

Main source of this article:

  • GTZ Study "RETEX - Renewable Energy Technology Exchange", main authors: Hedi Feibel, Fritz Kölling


Other sources of this article:

  • Seibold, Balthas / Winter, Phillip (2010): Freedom to innovate. In: Development + Cooperation / D+C, 2010/04, p. 170-172. Online at: inwent.org
  • Seibold, Balthas (2010): Unleashing Open Innovation Systems. International Experiences and Potentials for Developing Countries. In: gtz / Working Group on ‘Promoting Innovation Systems’ (Ed.): Strengthening Innovation Systems in the Context of Development Cooperation. Documentation: Eschborn, p. 87 – 92. Online at: gtz.de


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