Intellectual Property Rights and Global Warming

By Derclaye, Estelle | Marquette Intellectual Property Law Review, Summer 2008 | Go to article overview

Intellectual Property Rights and Global Warming


Derclaye, Estelle, Marquette Intellectual Property Law Review


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.

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

This Part is divided into six Sections. …

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