Although TRIPS have introduced harmonization, they have not created a world of unitary patent policies and levels of patent protection. This means that a number of countries could match all TRIPS, but all show differences in the details of their national IP systems. The reasons are twofold. First, TRIPS is not a self-structuring legal body, but an agreement that imposes and prohibits different practices and leaves implementation issues to countries. For example, trips sets out a number of conditions that should be met when issuing compulsory licences, but how are these conditions implemented in national patent systems (what type of behaviour of patent holders is a mandatory reason for licensing? Can the Ministry of Health act alone? Should there be a health emergency and, if so, how is it determined and who explains it?) on the spot. This means that TRIPS have left countries with political choices (IPR Commission, 2002; Correa, 2000) and countries could – and have – respect TRIPS differently. Second, the TRIPS agreement focused largely on legislation and not on enforcement practices. This means that countries can be different not only de jure (for example. B the three political levers or the details of the rules on compulsory licensing), but also de facto because of the application of their new laws. And the evidence indicates considerable differences between the levels of law and de facto protection of intellectual property (Maskus, 2000; Shadlen, Schrank, Kurtz, 2005). A recent study (Papageorgiadis – McDonald, 2019) shows that in many middle- and low-income countries, de jure protection of intellectual property is a marked departure from the de facto protection of intellectual property. Figure 1 is taken from his paper and shows the two de jure and de facto dimensions of IPR on both axes12 The worlds of business and technology were also very different at the end of the Uruguay cycle than at the beginning. The spread of new information and communication technologies began to grow and eventually opened a new phase of development of global industry and production, largely dominated by the increasing fragmentation of global production and value chains (16.
For the major industrialized countries, which have persisted in calling for stricter protection of intellectual property, the provisions of TRIPS provided little guarantee for emerging new technology sectors, such as software, AI and telecommunications. Patent and copyright policy for new ICT industries and their relationship to competition policy remain controversial areas where consensus has continued to grow. In some sectors characterized by the globalization of production and the presence of OCM, the ON TRIPS agreement is almost superfluous and has been supplanted by essential patent cooperation standards and agreements as a type of innovation and adequacy policy. The advent of digital commerce has given rise to new challenges and new forms of conflict that TRIPS have not been able to address (Azmeh, Foster, Echavarri, 2020; Haggart, 2014). International labour mobility has also brought a whole host of new themes, such as trade secrets and espionage activities. Thus, although the most comprehensive international IP agreement is somehow outdated, it has had to face new unforeseen realities at the beginning – and even for most – of the Uruguay Round. Although attention to lax enforcement has often focused on China, China is not alone. Chart 1 shows similar differences between accounting laws and laws in practice in many other emerging economies such as Argentina, Mexico, the Philippines and Turkey, as well as India, Russia and Brazil (many of these countries were initially opposed to the TRIPS agreement). As Athreye, Martelli and Piscitello (2020) have pointed out, we can see two groups of countries: those for which de jure and de facto IPRs are moving in the same direction (a positive relationship) and a smaller group of middle-income countries, both of which are