The intense negotiations at the just-concluded 24th Climate Change Conference (COP24) to deliver the goals of limiting global temperature rises to well below 2 degrees Celsius ended on a high note with the Paris Agreement “rulebook”. The rulebook offers a set of regulations that will govern how countries cut carbon, provide finance to poorer nations and ensure the agreed to expectations are fulfilled. However, the summit accord reached on the rules by 196 states in Katowice, Poland, fell a bit short according to some observers, calling to mind the classic case of “the tragedy of the commons”. The tragedy describes a scenario where a resource freely available to all is inefficiently used, say, community members overfishing a lake to ruin due to lack of collective self-regulation. In this case, such a disaster is evoked by the countries’ failure to agree on, for example, the rules for voluntary market mechanisms to protect the vulnerable commons of the atmosphere. This pushed part of the negotiation process onto next year’s COP25 in Chile. While it was mostly agreed under the new international climate regime all countries will have to report their emissions – and progress in cutting them – every two years from 2024, the final outcome included hints at the need for more ambitious climate pledges before 2020. Many NGOs were disappointed at the lack of more forceful language to ensure that countries keep their promises, given the urgency of the climate problem. Still, an important step was attained. The process was hailed a success putting together the Katowice Climate Package to implement the 2015 Paris Agreement, which could go a long way to avert a would be “tragedy of the commons.” Incidentally, the economics essay of the same title by Garrett Hardin that birthed the concept and turned it into one of the most significant environmental ideas marked its 50th anniversary on December 13th. The influence of “The tragedy of the commons” was immense, writes The Economist, of which for environmentalists it provided the intellectual backing for green regulations. It has, however, since moved on from mere regulation to application in commerce through the idea of private property, and on to the idea of the creative commons that forfeits intellectual property claims. This includes the notion of public collaboration that characterises the development of web-based open-source solutions that are made freely available. In the 21st century, The Economist explains, the tragedy of the commons metaphor flourished in a new domain: the intangible world of intellectual property. I might add it has everything to do with solutions to climate change that I revert to in a moment. First, as a by-the-way, perhaps none better explains the tragedy in intellectual property than expressed in the current ruckus over the Swahili phrase, “Hakuna Matata”, copyrighted as legal property of the Walt Disney Company. As I write this, an online petition calling on the movie company to relinquish its trademark of the phrase has attracted over 50,000 signatures. Used across East Africa where Swahili is spoken, including in Rwanda, and popularised in 1982 by the Kenyan band Them Mushrooms song Jambo Bwana in which the phrase features, it was later featured in the 1994 version of the Lion King film and subsequently copyrighted in the United States by Walt Disney. Depending on which intellectual property (IP) expert you ask, the copyright does not necessarily bar anybody outside the US from using it on merchandise such as t-shirts. This supposes copyright may not be applicable anywhere in the region, or in Africa, for that matter. As a creative in East Africa, explains IP lawyer Liz Lenjo in an analysis on the Walt Disney copyright, you can use it in your music video, film and fashion designs without infringing the right. But the Zimbabwean-Canadian activist Shelton Mpala, who initiated the petition, has likened the move by the US film company to trademark the phrase to cultural appropriation and colonialism. Many in the region and across the world agree with him. As a safeguard, however, there already exists the 2010 Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore that African governments continue to be encouraged to domesticate. The Protocol was adopted under the auspices of the African Regional Intellectual Property Organisation (ARIPO) and establishes vital collaborative legal, policy and institutional mechanisms for the regional protection of indigenous knowledge and cultural heritage. There is a hint of this in the World Intellectual Property Organization (WIPO) Regional Seminar on Patent Cooperation Treaty and Patentscope for African Countries held in Kigali recently. To come back to the COP24 and what remains to be done to attain the 2015 Paris Agreement goals, it may not require a leap in imagination to perceive that it all encompasses the commons such as land or atmosphere, and the commons of the mind as expressed in the concept of intellectual property. Observe that the Paris Agreement “rulebook” to govern how countries will cut carbon along with the requisite financial provision also implies making available appropriate and open source technology such as solar energy to deal with the urgency of the climate problem. Twitter: @gituram The views expressed in this article are of the author.
