This article is written by Akhi Akter Nishi, University of Information Technology and Sciences (UITS), LLB (4th Year), during her internship at LeDroit India.
KEYWORDS: Intellectual Property Rights, Global South, Innovation, TRIPS Agreement, Access to Medicine, Biopiracy
ABSTRACT
Intellectual Property Rights (IPRs) are often portrayed as essential tools for encouraging innovation, creativity, and economic growth. However, in the context of the Global South, these rights raise complex questions about equity, access, and justice. This article critically examines whether IPR frameworks genuinely promote innovation in developing countries or whether they serve to uphold monopolies that benefit only a few. Through a detailed exploration of international agreements, traditional knowledge protection, and innovation ecosystems in the Global South, the article highlights the structural imbalances that often leave local communities at a disadvantage. It reflects on how IPR regimes, shaped largely by the interests of developed nations, can limit access to essential goods, restrict the sharing of indigenous knowledge, and hinder sustainable development. The article also explores alternative, community-centered models that challenge the status quo. Ultimately, it calls for a reimagining of IPRs—one that respects human dignity, fosters inclusive innovation, and aligns legal protections with the diverse realities of the Global South.
INTRODUCTION
In an increasingly interconnected world, the value of ideas, creativity, and innovation is protected through systems known as Intellectual Property Rights (IPRs). These legal tools, ranging from patents and copyrights to geographical indications, are designed to reward inventors, encourage innovation, and stimulate economic growth. While the theoretical purpose of IPRs is widely accepted, their practical application, particularly in the Global South, remains deeply controversial. For many developing countries, IPRs have become a double-edged sword: on one side, they promise economic advancement through innovation; on the other, they risk reinforcing global inequalities and enabling monopolistic control over essential knowledge, resources, and technologies. This article aims to unpack the tension between innovation and monopoly in the context of the Global South. It explores whether current IPR frameworks truly serve the interests of developing countries or whether they primarily benefit powerful multinational corporations and developed economies. By examining international legal instruments, development challenges, and alternative approaches to IP governance, the article seeks to offer a critical and grounded perspective on how IPRs can be reshaped to serve justice, inclusion, and sustainable growth. The goal is not to reject intellectual property, but to reimagine it in a way that empowers, rather than marginalizes, the Global South.
THE LEGAL AND HISTORICAL FOUNDATIONS OF IPR
The evolution of Intellectual Property Rights (IPR) is closely tied to the history of economic control and colonial expansion. Initially, IPRs aimed to protect the financial interests of inventors and creators in industrialized countries. Over time, this developed into a global system influenced by multilateral trade agreements and institutions. A significant milestone occurred with the creation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995 under the World Trade Organization (WTO). TRIPS introduced minimum standards for IPR protection that all WTO member countries, including developing nations, needed to follow.
While TRIPS aimed to standardize global IPR rules, many have criticized it for favoring developed countries and multinational companies. Numerous developing nations lacked the legal, institutional, and technological resources to implement and benefit from the agreement fully. This situation has created a greater reliance on foreign technologies and increased costs for essential goods, such as medicines and agricultural products.
At the same time, the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations, has been important in promoting the global harmonization of IP law. However, critics say that WIPO’s development agenda often gets overshadowed by its connection to the commercial interests of powerful countries.
In short, the legal basis of IPR as we understand it today is not neutral; it reflects power dynamics, historical inequalities, and market-driven interests. As we look at the effects of these frameworks on the Global South, it is important to question whether the current system truly fosters innovation or simply protects established monopolies.
INNOVATION AND THE GLOBAL SOUTH: A LEGAL OPPORTUNITY OR BARRIER?
Innovation is often seen as the key to economic change in developing countries, but the current intellectual property system creates significant barriers to achieving this potential. The Global South has a wealth of creativity, indigenous knowledge, and emerging technological talent. Still, access to intellectual property rights protection and its associated benefits remains uneven due to financial, institutional, and infrastructural issues.
Many local inventors and small businesses in countries like Bangladesh, Kenya, and the Philippines find it hard to navigate the complex and costly patenting process. Even when they develop new ideas, the lack of support systems, such as legal help, research and development investment, and government-backed commercialization channels, limits their ability to compete globally. A report by the United Nations Conference on Trade and Development (UNCTAD) states that developing countries make up less than 2% of global patent applications, despite representing over 80% of the world’s population.
Additionally, the dominance of multinational companies in areas like pharmaceuticals, biotechnology, and digital technologies further sidelines local innovation. The strict enforcement of TRIPS-compliant laws in the Global South raises questions about whether these laws support innovation or serve as legal obstacles.
To foster true innovation, intellectual property laws in the Global South must move beyond mimicking Western legal models. They should be adapted to local contexts and development needs by prioritizing community rights, inclusive knowledge-sharing, and fair access to resources.
IPR AND ACCESS TO MEDICINE
One of the most visible and urgent challenges of Intellectual Property Rights in the Global South is their effect on access to essential medicines. Patent protections under the TRIPS Agreement have often drawn criticism for allowing monopolies in the pharmaceutical sector. These monopolies lead to high drug prices and limited availability in low-income countries.
The TRIPS Agreement does include some safeguards, such as compulsory licensing, which lets a government authorize the use of a patented product without the patent holder’s consent during public health emergencies. The Doha Declaration on the TRIPS Agreement and Public Health (2001) reaffirmed this mechanism, making it clear that TRIPS should not stop members from taking steps to protect public health.
Despite this flexibility, many countries in the Global South face pressure from trade negotiations or political influence not to use compulsory licensing provisions. Legal and bureaucratic hurdles also make the effective implementation of these measures difficult. During the COVID-19 pandemic, the lack of equal access to vaccines highlighted the shortcomings of the current IPR system in times of global crisis. While some countries pushed for temporary waivers of IP protections on vaccines and medical technologies, resistance from developed nations and pharmaceutical lobbies stalled real progress. This ongoing tension points to a deeper issue: the patent system, as it currently exists, prioritizes profit over people. Often, the innovation spurred by patents is out of reach for the very populations that need it most. Without structural reforms to ensure that IPRs do not undermine public health, the promise of innovation will continue to be overshadowed by its monopolistic effects.
TRADITIONAL KNOWLEDGE, BIOPIRACY, AND GI PROTECTION
Beyond pharmaceuticals and technology, one of the most contested areas of Intellectual Property Rights in the Global South is the protection of traditional knowledge (TK) and genetic resources. These cultural and natural assets, developed and preserved over generations, are often left vulnerable to exploitation by foreign corporations in a process commonly referred to as biopiracy.
Biopiracy typically occurs when corporations or researchers patent natural products or traditional remedies without the consent of or compensation to the communities that discovered or preserved them. Notable examples include the attempted patenting of turmeric and neem by foreign institutions—cases which were ultimately overturned due to evidence of traditional use. The turmeric case was revoked in the United States after India successfully proved that the use of turmeric for wound healing was part of public knowledge.
Similarly, disputes over Basmati rice between Indian farmers and a U.S. company that sought a patent led to global debate over the commodification of cultural heritage. These cases exposed the limitations of international IP regimes in protecting non-Western, communal knowledge systems.
In Bangladesh, the recognition of Jamdani sarees as a Geographical Indication (GI) product in 2016 was a significant victory for cultural preservation and local empowerment. GI status helps protect unique, locally rooted products from imitation and provides economic benefits to producers. However, the broader challenge remains: the WIPO framework and the TRIPS Agreement do not adequately protect traditional knowledge and genetic resources unless they are formalized through Western-style documentation and registration. Many indigenous communities lack the means or legal infrastructure to do so.
Efforts are ongoing to address these gaps. WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is working to develop a binding international instrument. Still, without stronger enforcement mechanisms and respect for collective ownership models, traditional knowledge in the Global South will remain at risk of exploitation.
GLOBAL TRADE, IPR ENFORCEMENT, AND STRUCTURAL INEQUITIES
One of the key criticisms of the global intellectual property system is how it reinforces structural inequities between developed and developing countries. The TRIPS Agreement, while setting a baseline for IPR protection, also created obligations that many Global South nations were unprepared to meet, leading to a widening implementation gap and increasing dependency on developed economies for technology and legal standards.
Trade agreements often exacerbate this issue. Many developed countries have pushed for TRIPS-plus provisions in bilateral and regional trade agreements, which impose even stricter IP obligations than TRIPS itself. These clauses may limit the use of compulsory licensing, extend patent terms, and restrict generic competition, undermining the flexibilities that TRIPS was intended to preserve. This has been particularly problematic in the context of access to medicines and digital content regulation.
Enforcement is another dimension of inequality. While developing countries are pressured to strengthen IP laws and enforcement mechanisms, they often lack the administrative capacity or judicial expertise to implement them fairly. Furthermore, large multinational corporations have more resources to litigate cross-border IP disputes, giving them disproportionate power over smaller actors in the Global South. The WTO’s dispute settlement mechanism, though formally neutral, tends to favor countries with stronger legal and financial capacity. This results in an environment where developing nations are often unable to defend their interests effectively. For example, while high-income countries frequently initiate disputes, low-income nations rarely do so due to cost and complexity.
Addressing these imbalances requires a commitment to reforming the international IPR system. It also calls for South-South cooperation, regional IP frameworks, and policies that recognize diversity in innovation practices. Without these changes, the current regime will continue to favor monopolies over equitable development.
ALTERNATIVE APPROACHES AND LEGAL REFORMS
To create a more equitable global IPR landscape, particularly for the Global South, it is crucial to explore alternative frameworks that prioritize access, inclusion, and justice. A one-size-fits-all approach, modeled on Western patent systems, does not reflect the diverse cultural, economic, and legal contexts of developing nations.
One promising strategy is the promotion of open-source models, especially in the fields of software, biotechnology, and education. Open-source licensing facilitates collaboration, knowledge-sharing, and community-driven innovation, making it particularly suitable for low-resource environments where the costs of proprietary systems are prohibitive.
Another key reform area involves the expansion of compulsory licensing mechanisms under the TRIPS framework. Governments should be empowered—both legally and politically—to issue such licenses without facing external retaliation. This would improve access to essential technologies and medicines, especially during public health crises.
Additionally, South-South cooperation can play a transformative role. By pooling legal expertise, research capabilities, and negotiating strength, developing countries can establish regional intellectual property frameworks that reflect shared development goals. The African Regional Intellectual Property Organization (ARIPO) and the South Centre’s policy work are important examples of such efforts (South Centre IP & Innovation Policy). Furthermore, the recognition of community and collective rights in IP law is essential. Indigenous and local communities should be granted not just defensive protections against misappropriation, but affirmative rights that empower them to benefit from and control their own knowledge systems.
Finally, international bodies like WIPO and the WTO must adopt development-centered approaches in their policy-making, allowing for more flexible, inclusive, and context-sensitive interpretations of IPR rules. These reforms are not only legally and economically sound but ethically imperative if global innovation is to be a force for shared prosperity rather than corporate control.
CONCLUSION
The global Intellectual Property Rights regime stands at a crossroads—one path leads to monopolization and widening inequities, while the other envisions a future rooted in justice, access, and shared prosperity. For the Global South, IPRs have too often acted as tools of exclusion rather than empowerment. Despite the rhetoric of fostering innovation, the current legal architecture, heavily influenced by the Global North, often reinforces monopolies, stifles local creativity, and deepens structural dependencies. A strong, development-oriented approach to IPR reform is no longer optional—it is essential. Protecting intellectual property should never come at the cost of human rights, public health, or cultural identity. As this article has demonstrated, meaningful change lies in embracing compulsory licensing, strengthening regional cooperation, protecting traditional knowledge, and promoting open-source innovation. Intellectual Property Rights must be reimagined as a system that unlocks innovation, not just for the privileged few, but for communities across the Global South. This vision demands political will, legal reform, and above all, a collective commitment to fairness and inclusivity. Only then can IPRs serve as instruments of progress rather than guardians of monopoly.
REFERENCES
- https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
- https://www.wipo.int/en/web/traditional-knowledge
- https://unctad.org/Topic/Science-Technology-and-Innovation/Intellectual-Property
- https://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm
- https://www.ndcebios.in/v1n1/2021010110.pdf
- https://www.thedailystar.net/country/news/jamdani-sari-gets-gi-registration-certificate-1316203
- https://www.wipo.int/en/web/igc
- https://unctad.org/system/files/official-document/ictsd-idrc2006d1_en.pdf
- https://www.southcentre.int/category/issues/intellectual-property/
