IP law contradicts the only urgent call for all countries in a global partnership towards achieving gender equality.

With this healthy scepticism already in play, let us turn now to the focus of this volume: the relationship between the UN SDGs and IP law. As we will see, the prioritization of economic growth, alongside concepts of empowerment, entrepreneurialism, and education briefly critiqued above from a feminist perspective, have come to pervade the IP-gender equality discourse. As part of the international economic order of globalized trade, intellectual property ostensibly has a fairly significant part to play in economic development. Certainly, both the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) frequently tout the need for strong IP protection and enforcement structures to spur innovation-based economic development and foreign direct investment. The WTO’s Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS) recognizes, in its preamble, the ‘underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives’.32 This coheres with the common notion in trade circles that IP laws are an essential lever that nations may pull to advance technological innovation and economic development—which, in turn, supports the idea that strong IP rights’ protection is both a sign of, and essential to, a successful industrialized economy. This story has, of course, been the subject of widespread critique in scholarly and advocacy circles throughout the almost three decades since TRIPS came into force.33 The compelling critiques have only grown louder as IP rights have steadily been ‘ratcheted up’34 by TRIPS-plus plurilateral and bilateral agreements, and their costs highlighted, most recently, by the COVID-19 pandemic and the vaccine crisis in which the international IP system was clearly complicit.35 As Margaret Chon has aptly cautioned, ‘[i]ntellectual property, while purporting to heed the issues of development, often runs rough-shod over the central concerns of development.’36 Even if the trade-based paradigm that defines TRIPS and TRIPS-plus trade agreements is at odds with the more multidimensional vision of sustainable development that informs the UN SDGs, it might be thought that WIPO, as a specialized agency of the UN, is perfectly placed to steer the international IP system towards the goals of the 2030 Agenda. As Sara Bannerman has shown, a ‘broad development agenda’ originally dominated the international copyright system under the auspices of WIPO’s institutional predecessor, BIRPI, dating back to the late 19th century.37 However, as Bannerman argues, when WIPO joined the UN system in 1974, the ‘UN discourse of development, when transplanted onto the intellectual property system, was accompanied by a shift to a near-unitary emphasis on economic development’.38 Nonetheless, WIPO has long held itself out as supporting an international development agenda—a claim it was challenged to make good on with the 2007 Development Agenda for WIPO. 39 The original proposal was brought in 2004 by a group of developing countries (The Friends of Development, led by Brazil and Argentina) who accused developed countries of merely ‘paying lip-service’ to the idea of development.40 As Bannerman recounts, this ‘front-on challenge’ arguably regained a more central role for development at WIPO (which, in turn, arguably led developed countries to look elsewhere for opportunities to ratchet up their protections).41 Nevertheless, Bannerman cautions, WIPO shows little sign of embracing any broader sustainable development agenda.42 There is, it should be acknowledged, almost no reference to intellectual property in the SDGs themselves, and no indicators related to IP.43 The SDGs can hardly be considered a direct call to action for WIPO, which receives no mention at all (in contrast to other UN institutions such as the World Health Organization or the International Labour Organization). The extent to which WIPO should embrace the SDGs or broaden its vision of development in response is, no doubt, fraught with the usual tensions between differently situated member states.44 With the practical implications of the SDGs left to WIPO’s limited imagination, however, the vision that has emerged is predictably short-sighted, and disappointingly tethered to the tired narrative that securing and strengthening IP protection accelerates economic growth along the trajectory to development. Thus, the 2019 report on WIPO and the SDGs demonstrates a tunnel vision focus on ‘innovation’: Our growing, interconnected populations need new ways to address the many social, economic and environmental challenges identified by the Sustainable Development Goals (SDGs). We need innovation to help us … The World Intellectual Property Organization (WIPO) … exists to enable innovation and creativity … The value embedded in intellectual property rights and supported by the global IP system boosts the inventiveness that drives progress, helping us meet our greatest needs and aspirations.45 In the vision expressed by WIPO Director General, Francis Gurry, at the outset of the Report, WIPO exists to enable innovation, which is driven by an economic imperative, which is fundamental to social transformation, which is what the SDGs aim to achieve.46 WIPO’s website similarly explains that ‘IP is a critical incentive for innovation and creativity, which in turn are key to the success of the SDGs.’47 Conveniently, then, WIPO’s current (and historical) mission aligns naturally and unproblematically with the transformative 2030 Agenda—far from a call to action, WIPO just needs to continue doing what it’s doing: WIPO already ‘contributes to the SDGs by … enabling [its member states] to use the intellectual property (IP) system to drive the innovation, competitiveness and creativity needed to achieve these goals’. Pointing specifically to SDG 9 (building resilient infrastructure, promoting sustainable industrialization, and fostering innovation), WIPO’s 2019 SDG Report assures us that, as ‘history has shown’, intellectual property is ‘an essential and powerful tool’ to support the ‘innovation -transformation-progress cycle’.48 Apparently, we are to assume that innovation, competition, and creativity will necessarily support sustainability, and that the international IP system is therefore a necessary part of the global solution to our present predicament. But again, we might be compelled to ask, how and why would more of the same suddenly bring about transformational change? We have had an international IP system since the 19th century. That system of exclusive rights over innovations, knowledge, and creative expression has steadily expanded in scope and scale, flourishing alongside industrialization, colonial imperialism and neocolonialism, rapid resource extraction and over-exploitation, globalization, neoliberalization, the massive escalation of global income inequality, the climate change crisis, catastrophic environmental degradation, and—importantly for our purposes—patriarchal capitalism and the persistent subordination of women. Even if we can accept that the IP system has a role to play in potentially offering solutions to our current crisis, we can hardly deny that it has also played a role in leading us here, to this crisis point. IP, in other words, has also and always been part of the problem. It is simply not sufficient to assume that IP incentivizes innovation and creativity and therefore promises to support a sustainability agenda. We have to recognize that the IP system is fundamentally one of commoditization and private control—by its nature, it is perfectly congruent with rampant commercial exploitation, unconstrained development, and the growth imperatives of global capitalism. Worse, it is the foundation of what Ugo Pagano calls ‘intellectual monopoly capitalism’, institutionalized by the TRIPS Agreement and characterized by the global monopolization of knowledge, and the resulting dynamics of financialization, inequality, and stagnation.49 Even for proponents of the intellectual property system and its promises, its paradoxes are well known: it limits competition to stimulate invention, and it restricts expression to encourage creativity. It may lend support to a development agenda by incentivizing innovation and encouraging creative production; but even then, it must also hamper would-be innovators by locking up inventions,50 and chill downstream creators by granting exclusive rights over expressive works.51 As Bannerman writes: Although there are broad connections between intellectual property and the SDGs, WIPO narrowly interprets its role in achieving the SDGs primarily in terms of its contributions to SDG 9: “Industry, Innovation, and Infrastructure,” and specifically to the goal of fostering innovation. WIPO brands itself as an organization that promotes innovation, not intellectual property, sidestepping the obvious problem that intellectual property can contribute, but can also detract, from achieving many of the SDGs.52 It cannot simply be assumed that, in the struggle for sustainable development, the international IP system helps more than it hinders—that its public benefits will exceed its social costs. The evident failure to seriously engage with the broader challenges and interconnections that the SDGs present to the international IP system, as a central part of our global economic order and the core structure of today’s intellectual monopoly capitalism, is not just a blithe failure of imagination—it is a disheartening reminder that genuinely sustainable development is going to require far more fundamental change than our current institutions and their prevailing ideologies can provide