1. Introduction

Climate change creates a need and market for responsive innovative technologies that can be protected by a range of intellectual property rights (‘IPRs’), including those that are the most common focus in tertiary legal education: patents, designs, copyright, trade marks and confidential information. The availability of these IPRs to protect intangible property can provide valuable incentives to invest in new types of technologies. However, IP can also create barriers to accessing new innovative technologies that can help address climate change or reduce the causes of climate change. As private rights, IPRs originally subsist with the authors or creators of the works. However, ultimately, IPRs are primarily controlled by large (and often global) corporations that often prioritise economic sustainability and profits over social and environmental sustainability goals. The drive to get return on their investment in research and development prioritises corporations’ drive for control over the repair and service aftermarkets for the products, devices, machines and equipment that they produce and sell. This not only leads to higher prices but restricts competition in those markets. Often this results in limited access or distribution of newer and greener technologies in certain, less profitable markets. It is evident that IPRs create closed aftermarkets by creating barriers to repair of these goods and machines or by supporting poor design practices that contribute to premature obsolescence. This contributes to the global crisis in waste^[1] and pollution that negatively impacts the environment and accelerates climate change.^[2]

The need to ensure there is a balance struck between the IPR holders and the public who make use of the IP has long been addressed through the use of exceptions, defences and limitations that are built into IP legislation, such as fair dealing; provision for compulsory licensing of patents, designs and copyright, as well as the possibility of Crown use. Climate conscious lawyers can help ensure that IP laws operate in an environmentally sustainable way by balancing the need to incentivise the development of green technology with ensuring widespread, global access to technology that can directly or indirectly address climate change. This is usually through awareness of exceptions and limitations to IP protection. These exceptions, defences and limitations are highlighted in this chapter. One of the undeniable challenges for climate change advocacy groups (and their climate conscious lawyers) who wish to tackle IP barriers to climate change is the high costs associated with any form of IP litigation, particularly patent litigation.^[3] Additional legal competencies for climate conscious IP and technology lawyers that can drive legal and practical change should include an understanding of how access mechanisms that permit broader access to beneficial technologies such as creative commons licences or open science practices can accompany or replace enforcement of IPRs.^[4]

The second part of this chapter examines the influence of selected international legal agreements concerning IP and the environment on domestic IP protection and regulation of technology. Understanding these agreements can assist advocacy for legislative and regulatory change where the current exceptions and limitations are ineffective. The chapter then considers three important areas where technology and IP can impact climate change — green technology, waste and the right to repair movement, and climate advocacy — before concluding on future directions for climate change, IP and technology.