Under The Trips Agreement Framework To Promote Environmental Friendly Technology Research Of International Transfer

Environmentally Sound Technologies ("ESTs") are crucial for mitigation of climate change. Therefore, the United Nations Framework Convention on Climate Change ("UNFCCC") and other legal documents under this framework provide that the developed countries are obligated to transfer such ESTs to the developing countries. Yet, technology transfer to developing countries is not efficient. What is the reason of such inefficiency, how to improve such transfer, and what kind of measures should the Chinese government employs to encourage ESTs transfer to China? This Paper tries to answer those questions by four parts.In Chapter One, the obligations of developed countries for technology transfer to the developing countries under the UNFCCC and other legal documents are introduced. Statistics shows that ESTs transfer is far from enough. While current ESTs transfer mechanisms, the Finical Mechanism and Clean Development Mechanism, which do not promote such transfer by operating the intellectual property regime, are inefficient in ESTs transfer.In Chapter Two, the relationship between intellectual property rights ("IPRs") and ESTs transfer is under analysis. The strong IP protection may become the barrier to ESTs transfer. Therefore, restriction on IPRs is necessary. The flexibility clauses in the Agreement on Trade-related Aspects of Intellectual property Rights ("TRIPS" Agreement) can be used to improve ESTs transfer, and the compulsory licensing is the most suitable one.In Chapter three, the specific issues of compulsory licensing used to enhance ESTs transfer are expounded, which are reasons of compulsory licensing, the ESTs that can be licensed and the remuneration needed to pay. The reason of ESTs compulsory licensing is that climate change would cause public health crisis and public health crisis can present national emergency or other circumstances of extreme urgency, and the government or any third party authorized by government can use compulsory licensing if environmental public interest is concerned. The short-term mitigation technology and the adaptation technology can be licensed according to the need of each country. TRIPS Agreement provides that adequate remuneration shall be paid to the right holder in the circumstances of each case, taking in to account the economic value of the authorization. To compulsory licensing of ESTs, ensuring that the public get the technology product in a reasonable price shall be considered when decide the remuneration. In Chapter four, the policies and laws regarding ESTs transfer in China are analyzed. China stresses the developed countries’obligation of technology transfer, and confirms that we will comply with the TRIPS Agreement. At the meantime, China considers that strong intellectual property protection would block the technology transfer, and we shall use the flexibilities of TRIPS Agreement to improve the ESTs transfer. While the domestic laws of China have no specific regulation on ESTs transfer, and shall be completed and improved in the field of reasons of compulsory licensing, technologies that can be licensed and remuneration for compulsory licensing.