In recent years, several controversial new intellectual property treaties have been adopted, most importantly the World Trade Organization’s TRIPS Agreement. Proponents argued that TRIPS would promote global trade and innovation by requiring developing countries to adopt western-style IP protection. Critics allege that the Agreement has potentially devastating implications for developing countries, particularly with regard to access to medicines. These projected effects turn on an empirical question: Can TRIPS in fact oblige developing countries to “harmonize” their IP laws with those of developed countries? Conversely, how much flexibility does the Agreement leave developing countries, not only in theory but also in practice?
Although the literature on TRIPS is vast, it includes no detailed case study addressing these critical questions. This article remedies that, analyzing the implementation of TRIPS in one key – and contested – location: the pharmaceutical sector in India. It shows that, at a formal level, the TRIPS Agreement offers developing countries much more policy space than has commonly been recognized. TRIPS alone thus cannot produce deep harmonization. Nonetheless, TRIPS channels a strong harmonizing force. That force comes not from the text of the Agreement, but from the influence of resource limitations, transnational legal culture, and continued threats of unilateral retaliation. But developing countries can counteract the harmonizing pull of TRIPS with strategies also illustrated in India – strategies I call fragmentation, mimicry, and counter-harmonization.
Whether TRIPS produces deep harmonization therefore turns not on the text of the agreement, but on its context. A great deal depends on whether developing countries effectively deploy the counter-strategies identified here, which remains to be seen.