The world's burgeoning population and continual pressure for
better standards of living will require ever greater resources for living needs
at the same time that conventional energy sources are becoming depleted or
unusable, food sources depleted and insufficient, and clean water supplies
polluted and scarce. To where will humans turn as the available resources on
Earth run out and human needs continue to grow?
71 % of our Earth's surface is covered by ocean, and 80% of
the heat of the Sun shining daily on Earth is stored as thermal energy in the
ocean. By pumping or upwelling just a small fraction of this cold deep ocean
water for heat exchange with warm surface waters, the stored energy if
converted by ocean thermal energy conversion (OTEC) into electricity has a
capacity of 10,000 times the energy used by mankind daily. The OTEC heat
exchange cycle can also be used to generate potable water by flash evaporation,
and OTEC electricity can be used to generate clean fuels such as hydrogen and
ammonia by electrolysis. Each megawatt of OTEC production could supply energy, fuel and water sufficient for about 50,000 persons (world usage averages).
Deep ocean waters store high concentrations of dissolved
minerals such as nitrates, phosphates, and other nutrients that if brought to
the surface could act as natural fertilizer for growing marine biomass on
submerged ocean racks. Marine
biomass can be processed into clean biofuels such as butanol, and the biomass
residue can be further processed into organic fertilizers, protein-rich animal
and fish feeds, bioactive pharmaceuticals and other high-value marine
bioproducts. Fishfeed from marine
biomass and OTEC electricity can be supplied to tethered ocean cages for
growing pelagic species of fish.
The discharge of nutrient-rich cold water into the euphotic zone of
surface waters could stimulate marine life growth and thereby enhance marine
food chains to revitalize wild fish stocks.
Pumping
cold deep ocean water to the surface in large volumes for utility-scale OTEC
energy production could have beneficial impacts on the marine environment and
atmosphere. Each megawatt of OTEC
energy would bring about 50 million gallons of cold ocean water to the surface
per day. The large-scale cooling
of surface waters could reduce or mitigate the formation of tropical storms and
hurricanes. Other environmental
benefits could include absorption of carbon dioxide from the atmosphere to reduce greenhouse gases that contribute to
global warming and ocean acidification.
Realization of this vast potential for producing food, water
and energy from the ocean represents a new frontier for humanity that has been
called the "Blue Revolution". Like the “Green Revolution” of the past
generation that brought about an order of magnitude or greater of productivity
in agricultural and other land-based food production, the Blue Revolution has
the potential to provide food, water, and energy sufficient for mankind’s
needs. However, rather than being
land-based, the Blue Revolution is to be carried out in the oceans. This is a planetary resource that under
the United Nations Convention on the Law of the Sea has been declared to be
“the common heritage of humanity”.
Research efforts over the past 40 years have
shown that OTEC power generation can support integrated production of energy,
food, water and a variety of marine bioproducts on ocean platforms or
"plantships" deployed in ocean waters. OTEC powered plantships can be deployed in ocean spaces far
removed from coastal areas occupied for human recreation, fisheries, marine
sanctuaries, ports, and navigation lanes. Under the United Nations Convention
on the Law of the Sea[1]
(UNCLOS), countries bordering the oceans are deemed to have territorial waters
extending to 12 nautical miles (20 km), contiguous zones of enforcement
extending to 24 nautical miles (40 km), and administrative jurisdiction over
exclusive economic zones (EEZ) extending 200 nautical miles (340 km) from
shore.
UNCLOS provides that ocean-bordering nations
have exclusive rights to exploit their EEZs economically, including through
fishing rights, mineral extraction from the seabed, and permitting the
deployment of ocean structures, artificial islands, and/or seabed
structures. Other nations have a
right of transit for vessels through the EEZ and may share in access to fishing
and other resource gathering to the extent not utilized or otherwise permitted
by the ocean-bordering nation.
Ocean waters beyond the EEZ are defined as the "high seas" or
"international waters", which are reserved as "the common
heritage of humanity" from exclusive appropriation or exploitation by any
country.
The U.S. is a signatory to the UNCLOS but
has not yet ratified the treaty to be binding as U.S. law (first blocked by
President Reagan in a dispute over the definition of boundaries of the
continental shelf). However, the
U.S. observes its ocean space definitions and framework of rights and duties. U.S. administrative regulation of
activities in the EEZ continues to be in a transitional state moving toward
codification. Environmental and resource use regulations and other laws
have effect within U.S. territorial jurisdiction of territorial waters
extending to 12 nautical miles, and may be enforced within agency discretion
to contiguous zones extending to 24 nautical miles.
For realization
of the potential of the Blue Revolution, much research on testing and
development of best practices and technologies for ocean resource production needs
to be done. Intellectual property
rights (IPRs) in technology innovations are typically claimed by developers and
inventors and secured in their home countries as well as other countries of the
world. Technology developments are
often generated by multi-lateral or international research collaborations, as
global companies and foreign governments seek to exploit opportunities in other
countries. The global system of
intellectual property (IP) rights has been developed to protect innovation and
invention rights within and among the nations of the world. Important questions of benefit sharing
in IPRs would be raised for Blue Revolution technologies developed through
multi-lateral or international research conducted in ocean zones, and used in
later deployment of ocean resource production technologies in the ocean zones
of other countries.
Historically, knowledge of best practices and development of
economical and efficient technologies have been led by the more advanced
nations that have the technological and economic wherewithal to explore and
innovate new technologies. But the
more advanced nations have tended to use strong IPR regimes for market
dominance and profitmaking in globalized world trade. This has resulted in ongoing trade
conflicts and economic inequities.
The "Green Revolution" of the 1960s and 1970s
greatly improved agricultural productivity but was dominated by industrial
corporations of the more advanced countries controlling high-yield seeds,
fertilizers, & pesticides for sale in lesser developed countries at high
cost. Advanced medical and drug
technologies are another area where advanced countries have controlled access
to needed drugs and therapies, such as AIDS drugs, to the detriment of lesser
developed countries in Africa and Asia.
Developing countries have long sought to promote
developmental policies toward access to life-sustaining technologies through
benefit sharing in IPR rights, and this position has been supported in many UN
studies such as by UNESCO and UNCTAD.
Most recently, developing countries have sought to negotiate IPR access
to climate change technologies as a condition to signing on to world protocols
to reduce greenhouse gas emissions.
However, multi-national companies and the IPR agencies of the more
advanced countries have resisted attempts for IPR access, recommending instead
that developing countries should strengthen their own creative economies to
build up their IPR assets.[2]
Because the oceans are a shared, open, and accessible
planetary resource available to mankind worldwide, it has been asserted that
the benefits of ocean resources production should be shared with all
humanity. In particular, it has
been suggested that IPR benefits in ocean resource technologies should be
shared by allowing ocean resource technology access to all countries of the
world.
The case for IPR benefit sharing in ocean resource
technologies is particularly compelling where multi-lateral or international
cooperation is necessary for global companies and foreign governments to
conduct research within or in proximity to ocean zones of developing
countries. Those countries should
be allowed to share in the benefits of such research in exchange or as
equitable consideration for permitting the research to be conducted within or
in proximity to their ocean zones.
As effluents and other effects of production technologies practiced in
one ocean zone can easily flow and create impacts in adjacent ocean zones, IPR
benefit sharing should also be considered when developed ocean resource
technologies are later deployed within or in proximity to the ocean zones of
bordering countries.
Much ocean research will necessarily entail cooperative or
joint research efforts. In joint
research, it is common to jointly manage or pool together IPR rights in order
to remove ownership and enforcement issues as obstacles to sharing research
work among participants. Also, in
circumstances where multiple parties collaborate to develop and optimize
different parts of a complex system, such as occurred in the development of
digital television and microprocessors, allowing component developers to be
licensed under collective IPRs for the whole system can remove the legal
friction that might otherwise occur from the assertion of IPR rights between
contributing parties.
It
is also important to remember that IPR rights are territorially based. That is, the legal monopoly granted by
a patent obtained in a given country under its patent laws only apply within
the territorial jurisdiction of that country. Practice of an IPR-protected technology in the ocean EEZ of
a country would technically occur outside of the country’s jurisdiction, and
therefore IPR rights obtained in that country could not be enforced to prevent
deployment and use of the IPR-protected technology in the ocean EEZ outside of that country’s jurisdiction.
Another consideration weighing in favor of IPR benefit
sharing in ocean resource technologies is that the patent systems of almost all
countries of the world are “first-to-file” systems in which a patent can only
be obtained if a patent application is filed before a first publication of the
invention from or through another source.
Under the “America Invents Act” enacted in September 2011, the U.S. also
reformed its patent system to become a “first-to-file” system like the rest of
the world. In multi-lateral or
international research efforts, it has become common for joint research parties
to publish research data for access by participating parties and/or by
sponsoring research institutes, companies, and government agencies. Such publication of research
information before a party has filed for patent on any invention(s) contained
therein could preclude a valid patent from being obtained under “first-to-file”
patent systems. Therefore, ocean
resource technologies developed through multi-lateral or international research
might inherently preclude patenting anywhere unless total secrecy from prior
publication can be enforced.
Finally,
as a broad international protocol under UNCLOS, international waters beyond
designated ocean EEZs up to 200 nautical miles from shore are deemed to be “the
common heritage of humanity", which no nation or entity can appropriate
for its exclusive use. Effluents and other effects of ocean resource production
technologies practiced in one country’s ocean zone can easily flow and create
impacts in international waters. Therefore, benefit sharing of IPRs in
ocean resource technologies with all countries of the world might be considered
equitable compensation for any entity’s use of IPR-protected ocean resource
technologies that may affect international waters.
In summary,
benefit sharing of IPR rights in ocean resource technologies for production of
food, water and energy from the oceans for humanity’s needs may become an
important new paradigm in the Blue Revolution. Such IPR benefit sharing would be promoted by the shift from
land-based use of technologies and territorial-based IPR systems to the use of
ocean resource technologies in the oceans, as well as consistent with
international protocols for use of the oceans as the common heritage of
humanity.
[1] United Nations Convention on the Law of the Sea,
adopted December 1982, ratified by 166 countries, see UN Convention website:
http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm
[2]
"Access
to Climate Change Technology By Developing Countries", by Cynthia Cannady,
IP*SEVA, ICTSD Global Platform on Climate Change, Trade Policies and
Sustainable Energy, Issue Paper No. 25, Sept 2009.
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