The emergence of TRIPS and the subsequent backlash against it demonstrate structured agency through one complete cycle of change and the beginnings of a second cycle. In the first cycle that led to TRIPS, structural change was a necessary but insufficient condition. Structural change delivered the TRIPS architects to the forefront of global business regulation, but it took agency to construct and achieve TRIPS. In the second cycle TRIPS confronted agents as a structure, crucially shaping the context for action. “Inevitably social processes generated to meet certain requirements represent impediments to other groups” (Archer, 1982: 476). TRIPS has divided agents into supporters and resisters and has animated new corporate agents to protest its effects. While agency has been important in this early phase of post-TRIPS resistance, particularly in the access to medicines campaign, the ultimate outcome of the contest over TRIPS will be conditioned by broader and deeper structural factors as well. This chapter further explores the concept of structured agency by comparing TRIPS with the other new issues in the WTO, examining issues of compliance and legitimacy, and discussing post-TRIPS constraints and opportunities. It goes on to discuss the implications of the argument for both theory and policy.

The difference that agency makes: private power in comparative perspective

Viewed in isolation, TRIPS is a stunning triumph of the private sector in making global IP rules and in enlisting states and international organizations to enforce them. However, one must be careful not to generalize from one case.