From treaties to terms of service – the changing landscape of multilateralism and IP

The opening panel of this year’s MARQUES conference looked at how external factors are reshaping the way we work. Speakers Dev Gangjee and Daniel Gervais, together with the moderator, Gregor Vos, traced the evolution of the international IP system, the tensions of the present moment, and the possible futures of global coordination.

A short history of multilateral IP

The story begins in the 19th century, when bilateral treaties created reciprocal rights between states. This was replaced by the multilateral framework of the Paris Convention in 1883. The Convention was not a code, but it set minimum rights and became the truly universal starting point of international IP.

TRIPS marked the next great leap forward. It offered “harmonisation with teeth” by linking IP to trade leverage via the World Trade Organization. Crucially, TRIPS introduced dispute settlement mechanisms. But today, that system is faltering: since 2019, the United States has blocked appointments to the WTO’s appellate body. TRIPS remains on the books, but its enforcement is in question.

This shift, driven partly by national security arguments, has pushed the US towards a more unilateral stance. Other states now face a choice: follow the US into unilateralism or try to sustain multilateralism without its traditional leader. Some argue this returns us, informally, to a pre-TRIPS world.

From treaties to terms of service

A new dynamic has emerged in parallel. Increasingly, global coordination happens not through treaties, but through contracts. More specifically: the terms of service of private platforms. These govern enormous swathes of online activity but lack accountability and due process. Enforcement risks being biased, with rights holders, users and platforms all jockeying for influence.

The result is “policy-making by happenstance”: a fragmented, business-led regime, where rules are flexible but often invisible.

What comes next?

The panel suggested several avenues for moving beyond both TRIPS and unilateral platform rules:

• Strengthening regional frameworks such as the EU, EPO and African IP systems

• Reinvigorating soft law and cooperation through organisations like WIPO and the Multi-Party Interim Appeal Arbitration Arrangement (MPIA)

• Exploring hybrid models of co-regulation, codes of conduct and platform oversight

As Dev Gangjee noted, WIPO’s experience with geographical indications shows that smaller, more targeted agreements can work effectively without universal membership. As he put it, the reality is that IP multilateralism has always been a tapestry, not a monolith.

What does this mean?

The international IP system is under strain, caught between ageing treaties and private platform rules. Countries that still believe in multilateralism must be clear about their options, and the cost of inaction. At the same time, practitioners and businesses must navigate a patchwork world where legitimacy, enforcement and coordination are being redefined.

To find out more about the issues raised in this blog contact Rosie Burbidge.