Intellectual property rights and global warming.

• Author: Derclaye, Estelle
• Position: Conference notes

INTRODUCTION I. THE CURRENT INTELLECTUAL PROPERTY SYSTEM AND ITS IMPACT ON GLOBAL WARMING A. Rationales for Intellectual Property Protection B. General Provisions C. Morality and Ordre Public Provisions 1. Patents 2. Copyright and Related Rights D. Compulsory Licenses 1. Patents 2. Copyright and Related Rights E. The Principle of Exhaustion F. Conclusion II. HOW TO MAKE INTELLECTUAL PROPERTY LAWS GREENER A. Modifying the Morality and Ordre Public Provisions B. Modifying the Compulsory Licensing Rules 1. Patents 2. Copyright and Related Rights C. Resorting to Human Rights D. Implementation Practicalities CONCLUSION INTRODUCTION

The issue of global warming is everywhere. Not only does the topic fill the pages and screens of all media, e.g., newspapers, reviews, (1) or films, (2) it also regularly and increasingly occupies private companies, (3) economists and businessmen, (4) lawyers, (5) scientists, (6) and politicians (7) alike. It even interests the museums. (8) Global warming, which is mainly caused by the increase of carbon dioxide (C[O.sub.2]) in the atmosphere, (9) or most of global warming at least, is, it seems, the result of human activity. But human activity is far from new. What is new is a certain type of human activity--that linked to industrial development and therefore progress. The question then arises: could intellectual property rights (IPRs) be the cause of global warming? After all, the industrial revolution has brought with it IPRs, among the most relevant of which is the right to protect inventions. And the primary aim of patent law is to give an incentive to inventors to invent new products, processes and machines.

Copyright law's rationale is similar. Some of the greatest inventions of the last two centuries include the car, the train, the plane, the refrigerator, and the computer, and with them comes the use of energy, generally oil and coal, to make them work. These are some of the causes that contribute the most to the increase in levels of C[O.sub.2] in the planet's atmosphere. For instance, a third of C[O.sub.2] emissions in the European Union (EU) are generated by transport. (10) The intellectual property academic community has so far paid very little attention, if any, to this increasingly important issue. (11) It is time, however, that the national and international intellectual property systems and treaties be reassessed in view of this problem that touches every human being, if one accepts that human activity is the main cause of global warming as the vast majority of the scientific community indicates. (12)

This Article concentrates on how the existing international intellectual property instruments and EU law already provide safeguards to limit the levels of C[O.sub.2] in the atmosphere. (13) Some reference will also be made to UK law, to take the law of one country, when international or EU law is silent or not specific on the question. Reference will also sometimes be made to U.S. law for comparison purposes. More generally, the solutions developed in this Article may not only apply in Europe, but may also inspire other countries, including the United States, as they are based on international instruments and universal arguments that can apply in any country. For reasons of space, and because they are perhaps the most important rights as far as generating C[O.sub.2] is concerned, this Article focuses only on patents and copyrights. This Article has two parts. Part I examines how the current patent and copyright laws may already help reduce levels of C[O.sub.2]. Thereafter, Part II envisages how intellectual property laws could be improved to further reduce the levels of C[O.sub.2] if this is something governments and/or the international community decide to do.

1. THE CURRENT INTELLECTUAL PROPERTY SYSTEM AND ITS IMPACT ON GLOBAL WARMING

   This Part is divided into six Sections. Before looking at the actual provisions of current patent and copyright laws, their underlying rationales are examined to enlighten whether they have an impact on carbon emissions (Section A). Section B looks at general provisions of the international agreements to determine whether they deal with the interface between IPRs and the environment and, more specifically, levels of C[O.sub.2]. From this first general overview, it will be seen that there are different rules within intellectual property laws that directly or indirectly safeguard the environment and favor the reduction of C[O.sub.2]. There are three ways in which intellectual property laws already permit the reduction of C[O.sub.2]: the first is through morality and ordre public provisions (Section C), the second is through the use of compulsory licenses (Section D), and the third is through the exhaustion principle (Section E). Section F concludes this Part.

   1. Rationales for Intellectual Property Protection

      At first sight, IPRs can be seen as neutral, as their aim is simply to give an incentive to invent new technologies or create original works. For instance, Article 1, Section 8, Clause 8 of the U.S. Constitution (the Copyright and Patent clause) simply gives Congress the power "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This is one of the main justifications for having both patent and copyright laws; it is known as the incentive theory or utilitarian argument. Under this justification, if individuals know they may obtain an exclusive right (the reward that allows them to exclusively exploit their intellectual property and therefore reap the monetary benefits from it) if they produce a new product or an original creation, they will be encouraged to create or innovate. Under this justification, general wellbeing or social welfare is achieved, as the world is better off with better products (e.g., better medicines, better machines) and more cultural diversity. This argument is based on the principle of utility and the writings of late 18th- and 19th-century philosophers and economists Jeremy Bentham and John Stuart Mill. (14) The other main justification for having patents and copyrights is that they are natural rights. It is natural that an inventor or a creator obtains an intellectual property right to the fruits of his or her labor. This was first developed by Locke in the 17th century. Although he thought of only physical labor, (15) this theory has been extrapolated to include intellectual labor. These are the two main classical justifications for both rights. (16) One more recent and important justification for IPRs is that they are human rights based on the fact that they are property rights, albeit intellectual. (17) As human rights all have the same rank, they must therefore be balanced with each other and cannot be absolute. (18)

      What consequences do these justifications have in the context of this article? Under the natural rights theory, it seems that any inventor or creator should have a property right to his or her intellectual labor, whatever the consequence it has on global warming. Nonetheless, one could argue that according to an extrapolation of the principles advocated by Locke, the inventor or creator should consider the impact of his or her invention or work on the environment. Indeed, for Locke, the right to private ownership requires that the owner leaves in the commons enough and as good for others and that he or she may not remove more out of the commons than she or he can use (the "non-waste" condition). (19) Under the utilitarian justification or incentive theory, the idea is to grant exclusive rights to creators and inventors in the public interest--in other words, to promote social welfare. Therefore, this means that IPRs should not damage the environment and, more specifically, increase levels of C[O.sub.2], as this is arguably not generating social welfare. More specifically, under the U.S. Copyright and Patent Clause, which seems to support this incentive theory, the idea is that these two IPRs must promote progress. (20) What is progress is a philosophical question, which would take too long to debate here. But under a certain view, it may include the improvement of human life, which should include general well-being. (21) Therefore, again, it should mean that patents and copyrights should not be given for inventions and creations that increase the levels of C[O.sub.2] in the atmosphere if this leads to global warming. Or at least a balance should be made between the benefits of the invention/creation and its carbon impact. (22) It should be noted that the most recent multi-regime international instrument on IPRs (the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)) mentions in Article 7 that the protection and enforcement of IPRs should contribute to social and economic welfare, thereby also endorsing, albeit not expressly, a reduction in carbon emissions if this is conducive to social and economic welfare. (23) Article 7 of TRIPs will be discussed in more detail in the next Section. Finally, there is as yet no human right to a healthy environment, (24) but human rights to life and privacy, for instance, may come in conflict with IPRs or otherwise be said to have the same goal--human well-being--as IPRs under the human rights approach. In conclusion, possibly under the naturalist justification and at least under the incentive theory and human rights approaches, which can be seen as having the same end aim, IPRs' goal can be said to be congruent with the reduction of C[O.sub.2].

   2. General Provisions

      When one asks oneself how intellectual property laws cater to the protection of the environment and especially for the reduction of C[O.sub.2] in the atmosphere, the first thing that comes to mind is to look into the intellectual property international treaties and conventions. What do these instruments say about the relationship between...