The North-South divide in intellectual property (IP) refers to the gap in the protection and enforcement of IP rights between economically developed nations (North) and developing nations (South). Originating from historical, economic, and geopolitical factors, the divide stems from the establishment and refinement of IP laws primarily in industrialized Western countries during the 19th and early 20th centuries.

This led to robust legal frameworks in the North, while laws in the South were often developed in alignment with Northern interests. Consequently, developed Northern countries benefit from strong IP protections, fostering innovation-driven economies, while the South may struggle with accessing and utilizing patented technologies due to stricter regulations.

This divide has implications for global trade, development, and public health, particularly concerning access to essential medicines. Addressing the gap involves navigating complex discussions on international agreements, such as TRIPS, and finding a balance between IP protection and equitable access to innovation, especially in critical sectors like healthcare and technology transfer.

Historical Background:
The historical development of intellectual property rights (IPRs) traces back to ancient civilizations recognizing rudimentary property rights for inventions and creative works, evolving through medieval Europe's guild system, and formalized with laws like England's Statute of Monopolies (1624)[1] and Statute of Anne (1710)[2].

The Industrial Revolution spurred the need for patent laws to protect inventions, leading to international agreements like the Berne Convention (1886) and the Paris Convention (1883) to harmonize IP protection. The TRIPS Agreement (1994) further solidified IP standards globally.

This historical trajectory underscores the delicate balance between protecting creators' rights and fostering innovation and economic growth. However, the legacy of IPRs, nurtured in industrialized nations, perpetuates the North-South IP divide. Developed Northern countries possess well-established IP frameworks, particularly robust patent systems, granting exclusive rights to innovators. This historical advantage has fuelled economic and technological growth in the North, exacerbating the gap with the South.

Moreover, developed nations' influence in shaping international IP agreements like TRIPS has often imposed stringent standards on the South, hindering their economic competitiveness and access to patented technologies. This disparity extends to essential medicines, where IP protection can limit accessibility, exacerbating innovation disparities and public health challenges.

Thus, the historical emphasis on IP protection continues to shape the modern landscape, amplifying disparities in technology access, economic opportunities, and public health between North and South. Addressing these issues requires balancing IP protection with equitable access to innovation, ensuring global development and well-being.

Legal Frameworks and Disparities:
The North-South divide in intellectual property (IP) is starkly evident in the contrasting legal frameworks and approaches to IP protection between developed and developing countries. Developed nations like the United States and those in the European Union boast robust and comprehensive IP laws with stringent enforcement mechanisms, fostering innovation and research. In contrast, developing countries often struggle with limited IP infrastructure and resources, leading to higher rates of IP infringement and varying levels of protection.

One illustrative example of this divide can be seen in a comparison between the Indian Patent Act of 1970[3] and the provisions of the 35 United States Code[4] pertaining to patents.

The Indian Patent Act reflects a cautious approach, particularly in Sections 3 and 4, which exclude certain categories to protect traditional knowledge and prevent monopolies on essential practices. This approach acknowledges the rich traditional knowledge present in many developing countries and aims to safeguard it from exploitation.

In contrast, the corresponding sections in the United States Code have a broader scope, allowing for a wider range of inventions to be patented. However, this approach has faced criticism for potentially granting patents on subject matter that might be considered part of traditional knowledge in developing countries.

Furthermore, differences in patent eligibility criteria can lead to disparities in patent grants, with the United States generally granting more patents in various fields compared to India. Additionally, provisions regarding anticipation, novelty, and prior art in the Indian Patent Act (Sections 29 to 34) and the U.S. Code (Section 102) reveal differing approaches between developing and developed nations. India's framework offers comprehensive protections to indigenous innovations and traditional knowledge, while the U.S. Code focuses primarily on the novelty of inventions and prior art, with less specificity.

Another significant difference lies in the requirements for patent specifications. Section 10 of the Indian Patent Act mandates comprehensive descriptions of inventions, including operation, method of performance, and the best method known to the applicant.

This reflects India's emphasis on detailed disclosure and preservation of indigenous knowledge. In contrast, 35 USC Section 112[5] in the U.S. Code primarily focuses on enabling a person skilled in the art to make and use the invention based on the description, prioritizing clarity and simplicity.

These differences highlight the North-South IP divide, with developed nations favouring streamlined, comprehensive approaches to patents while developing nations often adopt more stringent requirements to protect traditional knowledge. Bridging this gap requires international cooperation and flexibility to address the diverse challenges and priorities of each group. Ultimately, harmonizing IP practices globally is essential to ensure equitable treatment of intellectual property and promote innovation and development worldwide.

Economic Implications:
The North-South intellectual property (IP) divide has significant economic implications, particularly affecting trade, innovation, and economic development differently for multinational corporations (MNCs) and developing country economies. Developed nations in the North, equipped with robust IP protections, often erect trade barriers for their counterparts in the South, impeding their capacity to manufacture and export products that might infringe on patented technologies. This limits market access and trade opportunities for developing countries.

Furthermore, the divide affects innovation differently; while MNCs benefit from strong IP safeguards, it can stifle creativity in the South, hindering their ability to adopt new technologies and compete globally.

Economically, the IP divide exacerbates existing disparities. Developed nations with robust IP frameworks attract more foreign investment and foster high-tech industries, while developing countries struggle to entice investment and confront barriers to knowledge and technology transfer.

MNCs from developed nations leverage the IP divide to their advantage, maintaining market dominance and securing higher profit margins. In contrast, developing country economies face hurdles in competing with MNCs due to limited access to advanced technologies and the costs associated with IP licensing, leading to economic dependency and hindering domestic industry growth.

The concept of intellectual property rights (IPR) underscores a significant divide between developed countries (Global North) and developing nations (Global South). In the Global North, IPR protection drives economic growth and innovation, with robust legal frameworks and strong enforcement mechanisms fostering technological advancements and dominating international markets. However, the Global South faces challenges where the cost of innovation often outweighs the benefits, relying more on imitation and technology borrowing.

Strong IPR measures in these regions can lead to higher costs of production, unemployment, and exploitation of indigenous knowledge and resources, hindering local populations from benefiting. Tailored policies considering each region's unique circumstances are essential to address this complex relationship between IPR protection and economic growth.

Access to Essential Medicines:
The issue of access to medicines in developing countries, particularly in the context of strict intellectual property (IP) protections, presents a significant challenge to public health. Stringent IP regulations can severely limit access to affordable drugs, often leaving vulnerable populations in developing nations without essential medications. A prominent example of this issue can be seen in the case of HIV/AIDS treatment.

Developed countries with strong IP protections have pharmaceutical companies that hold patents on antiretroviral drugs used to treat HIV/AIDS. These patents grant exclusive rights, allowing companies to charge high prices for these life-saving medications. As a result, many developing countries with high HIV/AIDS prevalence rates struggle to afford these drugs for their citizens.[6]

India and South Africa, backed by numerous developing countries, have requested a temporary waiver from the World Trade Organization (WTO) for certain provisions of the TRIPS Agreement related to COVID-19 vaccines and treatments. This waiver request highlights the North-South divide in intellectual property (IP.

Developed nations, primarily in the Global North, often prioritize strict IP protection, hindering equitable access to essential medicines in developing countries. The request aims to address this disparity by facilitating technology transfer and local production, ensuring broader access to vaccines. While some developed nations support the waiver, it underscores the ongoing tension between IP protection and global health equity.[7]

The patent systems in developed and developing countries have varying effects on research and development (R&D) and contribute to the North-South divide in intellectual property (IP). Developed countries' strong IP protection encourages innovation by offering inventors robust incentives for R&D. However, in developing nations, stringent IP regimes can hinder access to technology and knowledge, slowing domestic innovation. This divide perpetuates global technological disparities.

For instance, pharmaceutical patents in developed countries can lead to high drug prices, limiting access in the Global South. The World Health Organization emphasizes the need for balance to ensure that IP systems support innovation while addressing critical global health challenges.

Traditional Knowledge (TK) and north-south divide:
The North-South divide in Intellectual Property (IP) extends to the protection of traditional knowledge, particularly impacting developing countries. Developed nations in the Global North have robust IP measures for innovations, but traditional knowledge in the Global South lacks similar protection. Indigenous communities often lack legal means to secure rights, leading to exploitation by companies from developed countries.

Initiatives like India's Traditional Knowledge Digital Library aim to address this gap. Developing nations seek equitable engagement with the global IP system, emphasizing the importance of preserving traditional knowledge for a balanced global IP landscape.

Technology Transfer and Development:
Intellectual property (IP) regimes can significantly influence technology transfer between developed and developing countries. On one hand, strong IP protection can promote technology transfer by providing assurance to innovators and companies that their intellectual property rights will be upheld in foreign markets.

This can incentivize them to share their technologies with developing countries through various means such as licensing, joint ventures, or foreign direct investment (FDI). This transfer of technology can contribute to economic development in the South by enhancing productivity, fostering innovation, and improving the quality of goods and services.

On the other hand, stringent IP regimes can also hinder technology transfer, particularly when they grant strong monopolistic rights to patent holders. Companies from developed countries may be reluctant to share their technologies due to concerns about losing control over their intellectual property. This can result in a lack of access to essential technologies for developing countries, hindering their economic growth and innovation capabilities.

Additionally, high licensing fees or royalties associated with strong IP protections can create financial barriers for developing countries seeking to acquire technology. The role of technology transfer in fostering economic development in the South is crucial. It allows developing countries to leapfrog stages of technological development and catch up with more advanced economies.

However, achieving a balance in IP regimes that protects innovators' rights while ensuring equitable access to technology for development remains a challenge. International agreements and negotiations, such as those within the World Trade Organization (WTO), play a critical role in addressing these issues and promoting technology transfer as a catalyst for economic growth in the South[8] .

International Agreements and Treaties:
International agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have played a significant role in shaping the North-South intellectual property (IP) divide. TRIPS, established under the World Trade Organization (WTO), mandates stringent IP protection standards that have had varying impacts on developed and developing countries.

The negotiation and adoption of TRIPS in 1994 marked a contentious process. Developed countries, primarily from the Global North, advocated for strong IP protections, aiming to safeguard their innovations and creations.

However, developing nations, predominantly from the Global South, expressed concerns about the potential negative consequences of strict IP rules. They argued that such standards could hinder their access to affordable medicines, technologies, and limit their capacity to develop domestic industries.

The TRIPS Agreement introduced uniform global IP standards, which disproportionately benefited the North with its established IP systems. While TRIPS aimed to establish a level playing field, it inadvertently exacerbated the IP divide. Developing countries faced difficulties in complying with the agreement's provisions, leading to economic and technological disparities. Subsequent negotiations and debates within the WTO have attempted to address some of these issues.

The Doha Declaration on the TRIPS Agreement and Public Health, issued in 2001, played a pivotal role in addressing the North-South divide in intellectual property (IP). It affirmed that IP should not hinder access to essential medicines in developing countries. The declaration clarified that TRIPS allows nations to use flexibilities like compulsory licensing to ensure affordability and availability of crucial drugs.

By emphasizing public health, it struck a balance between IP protection and global well-being, marking a shift in international discourse. While not fully resolving the divide, it promoted solidarity and flexibility, setting a precedent for addressing critical health needs within the IP framework.[9]

Developing Countries' Perspectives:
Developing countries assert various viewpoints on intellectual property (IP) and actively advocate for more flexible IP regimes, underlining a range of critical arguments. They emphasize the importance of affordable access to medicines, especially in the context of public health emergencies such as HIV/AIDS.

Developing nations contend that stringent IP protections can drive up drug prices, making essential medicines inaccessible to their populations. They argue that flexibility in IP rules, particularly within the pharmaceutical sector, is essential to safeguard the health and well-being of their citizens.

Moreover, developing countries stress the need for technology transfer and knowledge sharing to foster economic growth and industrialization. They argue that rigid IP regulations can obstruct their access to critical technologies and skills required for development. These nations also emphasize the preservation of their cultural heritage and traditional knowledge, asserting that strict IP protections may hinder the free use and sharing of their cultural expressions.

To address IP disparities, developing countries employ various strategic initiatives. They leverage flexibilities within international agreements like the TRIPS Agreement to issue compulsory licenses for essential medicines, promoting local production and affordability.[10] The WIPO Secretariat, in tandem with Member States, has identified four clusters of flexibilities: Flexibilities as to the method of implementing TRIPS obligations, Flexibilities as to substantive standards of protection,

Flexibilities as to mechanisms of enforcement, Flexibilities as to areas not covered by the TRIPS Agreement. Regional IP agreements tailored to their specific needs facilitate technology transfer and collaboration. Additionally, establishing technology parks and innovation hubs encourages domestic innovation and knowledge-sharing.

Developing nations also engage in advocacy and negotiations on international platforms to raise awareness of their unique challenges and advocate for more equitable and development-friendly IP policies on a global scale.

These viewpoints and strategies reflect the commitment of developing countries to balance IP protection with their economic and public health needs, striving to ensure that IP regimes contribute positively to their social and economic development.

Efforts to Bridge the Divide:
International efforts to narrow the North-South divide in intellectual property (IP) aim to promote equitable access to knowledge, technology, and innovation. Initiatives such as TRIPS flexibility, technology transfer agreements by WIPO, and access to medicines initiatives like UNITAID work to reduce disparities. Development assistance programs from organizations like USAID and the World Bank support strengthening IP systems in developing nations. WIPO's Development Agenda focuses on capacity-building, aligning IP with development goals. South-South cooperation facilitates knowledge sharing and technology transfer.

Global health initiatives ensure access to essential health technologies. These efforts collectively aim to mitigate IP-related disparities and promote accessibility, innovation, and economic growth. Ongoing collaboration and commitment are crucial to ensuring positive contributions to global development and addressing inequities in knowledge and innovation access.

Conclusion:
The North-South divide in intellectual property (IP) represents a multifaceted challenge with significant implications for global trade, public health, technology transfer, and economic development. This gap, rooted in historical, economic, and geopolitical factors, has shaped the IP landscape differently in developed and developing countries.

While traditional IP rights have long been a focal point, the protection and recognition of traditional knowledge also play a crucial role, particularly for indigenous communities in the Global South. International agreements such as the TRIPS Agreement have attempted to address some of these disparities, but challenges persist in achieving a balanced and equitable global IP framework.

Efforts to bridge the North-South IP divide have made notable progress. Initiatives such as TRIPS flexibilities, technology transfer agreements, access to medicines initiatives, and development assistance programs have contributed to greater access to essential resources and knowledge sharing in developing countries. These efforts demonstrate a commitment to aligning IP regimes with social and economic development goals, especially in the context of public health emergencies.

Moving forward, future developments and policy directions should prioritize several key areas. Firstly, there is a need to balance IP protection with public health, particularly in light of the ongoing COVID-19 pandemic. Flexible IP regimes are essential to ensure access to vaccines and treatments in developing countries, necessitating expanded use of TRIPS flexibilities and mechanisms to facilitate technology transfer for the rapid production of essential medicines.

Secondly, enhancing technology transfer is critical for fostering innovation and economic growth. International agreements and incentives should be explored to facilitate the sharing of knowledge and patented technologies in a mutually beneficial manner for developed and developing countries alike.

Preserving traditional knowledge held by indigenous and local communities is another crucial aspect. Initiatives like the Traditional Knowledge Digital Library (TKDL) should be expanded and supported to prevent the misappropriation of traditional knowledge and promote cultural preservation and equitable development.

Capacity building is essential as well, given that developing countries often lack the resources and expertise to fully participate in global IP agreements. Strengthening capacity-building programs can help these nations develop and enforce their IP systems effectively, empowering them to protect their interests and foster innovation domestically.

Lastly, global cooperation remains paramount in addressing the North-South IP divide. Collaborative efforts between developed and developing countries, as well as international organizations, are key to finding solutions that strike a balance between IP protection and equitable access to knowledge and innovation. Continued dialogue and negotiation are necessary to navigate the complexities of IP disparities and ensure that the benefits of intellectual property are shared equitably across the globe.

In conclusion, addressing the North-South IP divide is an ongoing and complex endeavour that requires a concerted effort from the global community. By prioritizing inclusivity, innovation, and cooperation, we can work towards a more equitable and inclusive IP framework that benefits all stakeholders.

End-Notes:

• Tyler T. Ochoa and Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 84 J. Pat. & https://digitalcommons.law.scu.edu/facpubs/77 (last accessed: October 28, 2023)
• "Statute of Anne," Encyclopædia Britannica, https://www.britannica.com/topic/Statute-of-Anne (last accessed: October 28, 2023).
• The Patents Act, 1970. (n.d.), https://ipindia.gov.in/writereaddata/Portal/ev/sections/ps3.html (last accessed: October 28, 2023)
• 35 U.S. Code Part II - Patentability Of Inventions And Grant Of Patents. (n.d.). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/35/part-II, (last accessed: October 28, 2023)
• 35 U.S.C. § 112 (2012), https://www.law.cornell.edu/uscode/text/35/112 (last visited Feb. 6, 2024).
• Chin, L. J., Rifai-Bashjawish, H., Kleinert, K., Saltman, A., Leu, C. S., & Klitzman, R. HIV/AIDS Research Conducted in the Developing World and Sponsored by the Developed World: Reporting of Research Ethics Committee Review in Two Countries. Journal of Empirical Research on Human Research Ethics, https://doi.org/10.1525/jer.2011.6.3.83 (last accessed: October 28, 2023)
• Waiver From Certain Provisions Of The Trips Agreement For The Prevention, Containment And Treatment Of Covid-19. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True (last accessed: October 28,2023)
• Maskus, K. (2000), " Intellectual Property Rights in the Global Economy", https://econpapers.repec.org/bookchap/iieppress/99.htm (Last Accessed: October 30, 2023).
• World Trade Organization, Declaration on the TRIPS Agreement and Public Health, https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm (last Accessed: Oct. 30, 2023).
• World Intellectual Property Organization, "TRIPS: Advice and Assistance" (https://www.wipo.int/ip-development/en/policy_legislative_assistance/advice_trips.html) (Last Accessed: October 30, 2023).