2. The International Legal Framework for IP and Technology Law

2.1. Influence of International Law on Domestic IP Protection

Domestic IP law is shaped by standards found in international agreements that Australia has ratified, as well as bilateral and plurilateral agreements that include additional protection for IP owners, such as longer monopolies for protection for patent and copyright owners, or protection for foreign investors against expropriation of IP assets or treatment that is not fair and equitable, through investor–state dispute mechanisms.

The most influential international IP agreement is the Agreement on Trade Related Aspects of Intellectual Property Rights (‘TRIPS’). This requires all World Trade Organisation (‘WTO’) members to implement minimum IP standards. For example, an Australian patent examiner examining an application to patent an innovation in relation to solar panels considers whether the application meets thresholds of novelty, inventiveness and industrial applicability that are required by TRIPS Article 27 and embedded in the Patents Act 1990 (Cth) and Patents Regulations 1992 (Cth).

WTO members can contest failure to comply with these standards by other members through the WTO Dispute Settlement Body (‘DSB’) and enforcement measures can be applied against non-complying members. Several disputes have determined that WTO members need to address TRIPS noncompliance.^[1] These strong enforcement mechanisms can encourage members to prioritise their WTO obligations over other international obligations such as environmental obligations. However, recent disputes have recognised that other agreements such as the Framework Convention on Tobacco Control can support decisions by members to recognise societal interests in domestic IP legislation.^[2] Societal interests can include climate concerns where these motivate states to amend IP legislation ‘to promote the public interest in sectors of vital importance to their socio-economic and technological development’.^[3] This flexibility is important when states wish to amend domestic protection of IP to comply with obligations to address climate change, including the Framework Convention on Climate Change (‘FCCC’), the Kyoto Protocol and the Nagoya Protocol. The DSB has previously recognised the relevance of these agreements in its interpretation of other WTO agreements.^[4] Other agreements such as the Sustainable Development Goals (‘SDGs’) may also provide justification for restrictions on IP protection.^[5]

2.2. Technology Law and International Influences

Despite the impact of legal obligations on technology, ‘technology law’ is not currently a cohesive body of law. Although entitlements to exploit innovative technology are frequently established through assertion of IPRs, technology is much less cohesively regulated than IP law in Australia and in international agreements. However, the relationship between technology and sustainable development is a critical aspect of approaching the regulation of technology. IP protection can strongly influence the availability of technology that benefits and restricts sustainable development. Climate change is a critical consideration in realising sustainable development and there is increasing recognition of this in domestic legislation that should impact demand for environmentally sustainable technology, including renewable energy technology.^[6]

International consensus about the environment and sustainability, including the importance of addressing climate change, can also be relevant to the way that law regulates technology. For example, regulation of specific technologies can implement standards for greenhouse gas emissions agreed through the Kyoto Protocol. There is explicit recognition of the importance of the transfer of environmentally sound technologies and cooperation and capacity building to effect this in SDG 17. Realising the goals requires widespread development and use of technology consistent with SDGs of taking urgent action to combat climate change and its impacts, building sustainable communities and responsible production and consumption. Article 10 of the Paris Agreement establishes a technology development and transfer framework to support climate change mitigation and transformation and establishes a Technology Mechanism to achieve this. These measures are consistent with the requirement in TRIPS Article 66.2 that developed countries should provide incentives for promoting technology transfer to least-developed countries but provide important focus on environmental objectives.