Complementary approaches to discursive contestation on the effects of the IPR regime on technology transfer in the face of climate change

The effects of intellectual property rights (IPR) on the transfer of environmentally sound technologies (ESTs) has resulted in discursive contestation. On the one hand, the IPR regime is regarded as a catalyst to ESTs transfer. On the other hand, the IPR regime itself is argued to work as a barrier to the transfer of ESTs to developing countries. This contestation moved to another layer of discussion concerning what to do about the current IPR regime and the climate change regime that overlap on the subject matter of technology transfer. The IPR-as-a-catalyst approach prefers the IPR regime to remain as the status quo and that the climate change regime construct an enabling environment by lowering the transaction costs of technology transfer and enhancing the regulatory capacity of developing countries. On the contrary, skeptics of the role of the IPR regime in ESTs transfer prefer an active utilization of the flexible mechanisms of the IPR regime and more interventionist actions by the climate change regime for effective IPR-sharing. Regarding this bi-polar contestation, this paper analyzes why and where this discursive contestation occurs based on the economic theories of market failure. The benefits and difficulties of remedial institutional approaches to tackle market failures are explored; then, complementary institutional designs in compatibility with the IPR regime and in response to market failures are explored with exemplary cases under the climate change regime.