기후변화협약과 지적재산권 및 기술이전의 조화

The environmental experts acknowledge the critical role of technological innovation and the rapid and widespread transfer and implementation of technologies to stabilize and reduce greenhouse gas emissions. Objectives and commitments on transfer of the Environmentally Sound Technology(“EST”), including transfer of information and know-how, exist under the UNFCCC(United Nations Framework Convention on Climate Change), Kyoto Protocol, and Bali action plan. Developing countries, however, have very different individual circumstances and the specific impacts of climate change depend on a country’s geographical, social, cultural, economic and political situations. As a result, it is difficult to make a compromise on concrete implementations among the countries. Some countries view the current intellectual property rights framework is potentially an obstacle to transfer of technology to developing countries. The probability that developing countries will be able to exploit compulsory licensing under the WTO TRIPs to gain access to EST is low because article 31 provides several safeguards against compulsory licensing, including domestic use only. Even when export restrictions under the TRIPs are waived, that is related to compulsory licensing of pharmaceuticals. A number of measures related to IP and other incentive schemes to promote transfer of EST could also be considered in the context of a post-2012 climate regime. Some of the possibilities already being discussed include financial mechanisms and guidelines on IP protection for publicly-funded technologies. As one of the possible mechanisms for achieving both emission reductions and enhancement of EST transfer, this article suggests the similar approach to the Clean Development Mechanism(“CDM”). When a industrialized country transfers EST to developing countries, it can obtain certain credit for emission reduction generated by the application of the transferred EST in developing countries. The mechanism enable industrialized countries to protect its intellectual property, and at the same time, developing countries to obtain EST, which ultimately encourages emission reduction. The Basic Law on Low Carbon Green Growth has recently been enacted in Korea, which adopts the Cap and Trade System and emission trading. Therefore, the Korean government should encourage climate-related innovation and support so-called Kyoto mechanism with respect to the transfer of EST so as to prepare for a post-2012 climate regime.