Using a legal history methodology, this paper critically examined the international intellectual property rights regime as embodied in the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS Agreement) to evaluate its effectiveness in aiding the transfer of climate change mitigation and adaptation technologies from developed to the Economic Community of West African States (“ECOWAS”) and proposes approaches to promoting regional capacities and access to green technologies. Drawing on the historical antecedents underpinning the TRIPS Agreement, this paper argues that the TRIPS Agreement is not well-suited to adequately address the issue of access to green technologies faced by developing countries. As such, developing countries cannot benefit from the TRIPS Agreement for climate change mitigation and adaptation. Further, the paper posits that the legislative history around the TRIPS flexibilities for essential medicines may point to a path for climate change technologies. The paper’s primary contribution will be to take advantage of this historical perspective, which has been largely neglected in the existing literature on the subject. Building on this and situating intellectual property rights in the context of what climate change means today, the paper recommended necessary legal and policy interventions to improve access to essential technological innovations for climate change mitigation and adaptation in the ECOWAS. These recommendations, which will be fair and balanced, comprise a combination of options focused on possible exploitation, circumvention, and potential modification of the TRIPS Agreement.

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Intellectual Property Rights and Access to Green Technology in Economic Community of West African States: Issues, Challenges and the Way Forward

  • Solomon Ezike,
  • Dennis Oghenerobor Agelebe

摘要

Using a legal history methodology, this paper critically examined the international intellectual property rights regime as embodied in the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS Agreement) to evaluate its effectiveness in aiding the transfer of climate change mitigation and adaptation technologies from developed to the Economic Community of West African States (“ECOWAS”) and proposes approaches to promoting regional capacities and access to green technologies. Drawing on the historical antecedents underpinning the TRIPS Agreement, this paper argues that the TRIPS Agreement is not well-suited to adequately address the issue of access to green technologies faced by developing countries. As such, developing countries cannot benefit from the TRIPS Agreement for climate change mitigation and adaptation. Further, the paper posits that the legislative history around the TRIPS flexibilities for essential medicines may point to a path for climate change technologies. The paper’s primary contribution will be to take advantage of this historical perspective, which has been largely neglected in the existing literature on the subject. Building on this and situating intellectual property rights in the context of what climate change means today, the paper recommended necessary legal and policy interventions to improve access to essential technological innovations for climate change mitigation and adaptation in the ECOWAS. These recommendations, which will be fair and balanced, comprise a combination of options focused on possible exploitation, circumvention, and potential modification of the TRIPS Agreement.