Could IP rights be hobbling UN SDGs around climate change?

With less than six years to go until 2030, D-day for the 17 United Nations (UN) Sustainable Development Goals (SDGs) agreed upon by member nations as essential to peace, prosperity and climate change mitigation, are intellectual property (IP) rights and the power of the patent hampering Africa’s ability to access environmentally friendly technologies and respond to climate change?

This was the issue tackled by one of the panels that gathered in the first week of August for the World Intellectual Property Organization (WIPO)– World Trade Organization (WTO) Colloquium for Intellectual Property Teachers and Researchers in Africa. The University of Cape Town (UCT) is committed to supporting South Africa and the continent in achieving the UN SDGs. This is one of three main content themes for 2024 that UCT News is focusing on along with sustainability and SA’s 30-year anniversary of democracy.

Hosted by UCT’s Faculty of Law and organised in collaboration with the UN WTO’s Intellectual Property, Government Procurement & Competition Division (IPD) and the WIPO Academy, it drew 88 participants from universities and IP offices and organisations from across the continent, and as far afield as the United States, India, Saudi Arabia and New Zealand.

“The key theme was how to achieve climate justice and access to environmentally friendly technologies in Africa.”

“It was a privilege to convene both the colloquium and the second IP Scholars Africa Conference, and to take the opportunity to hear about the latest research being done on the continent on governing climate adaptation technologies,” said Professor Caroline Ncube, Department of Science and Innovation (DSI)–National Research Foundation (NRF) South African Research Chairs Initiative (SARChI) Chair: Intellectual Property, Innovation and Development, UCT Faculty of Law.

“The key theme was how to achieve climate justice and access to environmentally friendly technologies in Africa,” said Professor Ncube, who together with her team co-organised and co-hosted the colloquium and scholars’ conference, which was first hosted by the University of South Africa (UNISA) in 2018.

“These topics are not only timely, but also critical to the advancement of our collective knowledge and development of effective IP strategies,” said UCT’s acting deputy vice-chancellor for Research and Internationalisation, Professor Jeff Murugan, in his opening address.

Climate change, a pressing issue

“We are on a fast track to climate disaster ... a pathway to global warming of more than double the 1.5°C limit agreed in Paris. Some government and business leaders are saying one thing but doing another. Simply put, they are lying. And the results will be catastrophic. This is a climate emergency.”

These are the words of United Nations Secretary General António Guterres, quoted by Dr Andrew Rens, Research ICT Africa, who looked at shortcomings within UN climate agreements: the UN Framework Convention on Climate Change (UNFCCC) of 1992, the Kyoto Protocol of 1997 and the Paris agreement of 2015, given the pressures of climate change.

In this brave new adapt-or-die world of global warming, where, in the words of the moderator, Professor Amos Saurombe, UNISA associate professor of law, and international trade law consultant, “many African countries are suffering the consequences of climate change, and not necessarily due to their own actions”, is the continent able to access all it needs to build defences against climate change?

90% of high-value climate technology is concentrated in only 10 countries

While the majority of climate change adaptation and mitigation technologies exist, they are not available to all communities. So said Dr Bassem Awad, the director of Intellectual Property, Information and Technology, at the Faculty of Law, University of Western Ontario in Canada.

The UN’s SDG 7, “Affordable and Clean Energy”, rides upon access to environmentally friendly technology, as does SDG 9, “Industry, Innovation and Infrastructure”, if industrialisation is to be sustainable. Yet the path to clean energy is fraught with patent laws and prohibitive costs.

“Some 80% of technology needed to reach the 2030 climate change goals is on the market,” Dr Awad said. “Why not here? There is a disconnect between the technology holder and the communities who need it most.”

“There is a disconnect between the technology holder and the communities who need it most.”

So where does the intersection between climate justice and patent law lie? How does one stop intellectual property rights from being a barrier?

WIPO’s Agreement on Trade-Related Intellectual Property Rights (TRIPS) article 7, as quoted by Dr Rens, states: “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare.”

Possible solutions posed by Awad included initiatives to promote green patent monopolies, by, for example, fast-tracking environmentally friendly technologies, restricting monopolies, by, for example, public policy, or eliminating green patent monopolies towards collaborative sharing.

Are African policy makers playing their part?

Aside from lack of access to clean technology, could slow decision and policy making by local authorities be hampering Africa’s efforts?

Take Uganda, for example, which introduced in 2015 a National Climate Change Policy, and in 2018 a plan to reduce greenhouse gases by 22% by 2030.

Local innovations to mitigate the impact of climate change include crop technology in over 23 plant varieties such as early maturity, tolerance to crop disease, drought and pests, and high yields. Animal innovations include the development of anti-tick vaccines, genetic improvement and boosting fish conservation.

And yet, said Dr Anthony Kakooza, School of Law, Makerere University, efforts have been met with inadequate regulatory support. For example, although the Plant Variety Protection Act came out in 2014, it does not have force of law yet due to policy lapses.

“Despite all this new innovation, there has been inadequate support. We have a political landscape that supports innovation, but the regulatory landscape is still wanting. This leads to ineffective utilisation and lower realisation of full potential,” Dr Kakooza said.

He concluded that government support and foresightedness, strong regulatory frameworks at regional and continental level, with a top-down approach, and IP awareness were crucial to supporting innovation that addresses climate change.

So much potential, so little power

Consider Mozambique, which has the potential to generate 23 026 GW of electricity through renewable energy sources, and neighbours clamouring to supplement their own deficits. And yet, at the end of 2023, 49% of Mozambicans were without access to electricity.

“Despite being endowed with significant sources of renewable energy, Mozambique still cannot satisfy its own needs, let alone unlock its potential to become a regional energy hub,” said Télio Murrure, an associate at SAL & Caldeira Advogados Associates in Maputo.

The reality is a seesaw between the high demand for electricity and the need to avoid unclean sources.

Questions for a continent.

How can Mozambique access green technology? How do stakeholders benefit from WIPO Green with regards to collaboration on environmentally friendly technology and other options within the IP system to tackle energy poverty and comply with climate change commitments? Are WIPO Green and other IP options enough?

But one thing seems certain: we are in this together. Collaboration and the sharing of green technology is essential to meeting SDG 7: access to affordable, reliable, sustainable and modern energy for all and to fighting climate change.