The 14th Ministerial Conference of the World Trade Organization (MC14) ended without a deal to renew the e-commerce moratorium. For the first time in 28 years, WTO members are technically free to impose customs duties on electronic transmissions. But most have already given up that option in other trade agreements. The more important story is that the collapse of the e-commerce moratorium also brought down the moratorium on TRIPS non-violation complaints (NVCs), which may prove even more significant for the digital economy.
The Ecommerce Moratorium: Overrated?
Tech companies have spent years obsessing over the e-commerce moratorium, claiming it has been essential for the development of the digital economy since 1998. Perhaps that framing made sense in the early days of the Internet, when the Clinton Administration declared it a tariff-free environment and directed USTR to secure a multilateral commitment that products and services delivered across the Internet would not be subject to customs duties. Since then, the U.S. and its allies have already locked in similar commitments elsewhere. On April 2, two days after the failed Ministerial, 23 countries agreed not to impose e-commerce duties until the next General Council meeting. There are also 66 JSI ecommerce members, and the US and the EU FTA partners include similar commitments. Even Brazil, which blocked a 5-year deal at MC14, agreed not to impose e-commerce duties under its Mercosur agreement, signed in January 2026. The moratorium was not the only layer of protection. Trade lobbyists may have been overemphasizing its importance while putting all their eggs in one basket.
The TRIPS NVC: The More Important Story
The TRIPS NVC moratorium has long protected countries from WTO disputes over intellectual property measures that do not technically infringe TRIPS, but that rights holders claim undermine their expected commercial benefits. In plain terms, it has helped shield public interest IP policies from challenge simply for getting in the way of profit expectations.
With that protection now gone, the risk is real. The pharmaceutical and copyright industries now have a new opening to attack measures on access to medicines, copyright limitations and exceptions, fair use, and other public-interest safeguards not by proving a TRIPs violation, but simply by arguing that their commercial expectation have been frustrated.
Not Just a Developing Country Issue
For years, TRIPS NVC was treated mainly as a developing-country issue. That framing still matters because developing countries need policy space for public health and access to knowledge. But this is no longer the whole story. The AI industry also depends heavily on fair use and broader copyright exceptions. According to the Computer Communications Industry Association, fair use industries contribute roughly $5 trillion to the US economy. That figure sits on a foundation of copyright exceptions that the TRIPS NVC moratorium helped protect.
That’s why the post-MC14 discussions need to shift.
The global debate over generative AI and copyright is already intense. There are ongoing AI copyright cases in the US, such as Kadrey v. Meta and Bartz v. Anthropic. European Courts are also grappling with the same questions; the CJEU is now addressing AI-related copyright issues in Like Company v. Google. The European Parliament has called on the Commission to revisit EU copyright rules for generative AI, and the UK government recently promoted a broad training exception, then backed away after an outcry from copyright holders.
The international layer of these debates is underexplored. Copyright exceptions do not exist in isolation. They are regulated under TRIPS and the Berne Convention, including the three-step test. That test is not some decorative footnote to international copyright law. It is the ceiling above national exceptions. As more and more countries expand the scope of copyright exceptions for AI training, they risk frustrating copyright holders’ commercial expectations. There is a real risk that right holders will start to see TRIPS NVC as another path to challenge legal conditions that allowed tech companies and now the AI industry to grow around copyright exceptions.
To be clear, that does not mean a TRIPS NVC case against the US, UK, or the EU is imminent, or that it would necessarily succeed. There have been no TRIPS NVC cases because the moratorium was in place for so long. But that is the point. The moratorium kept this line of attack largely off the table. It is back on the table now.
The Wrong Fight
So, while tech companies and trade lobbyists continue to mourn the ecommerce moratorium, they may face a greater risk from the lapse of TRIPS NVC. It is not fair to treat this issue as an access-to-medicines or developing-country issue and expect the Global South to save the legal backbone of the AI industry. And many Global South countries, watching how these negotiations have unfolded, will not want to do so.
Talks are back in Geneva now. Without the pressure of a Ministerial, slow drift is a real risk. The longer this lapse continues, the easier it becomes to normalize a major shift in the balance of the WTO IP system.
This could become a lose-lose. Thirty years of progress on IP flexibilities for access to knowledge, access to medicines, and user rights would be at risk. So would the legal foundations of the AI industry’s business model, although the Industry still hasn’t fully recognized its exposure.
The pharmaceutical and copyright industries are best positioned to exploit the TRIPS NCV mechanism. They have the legal resources and political expertise to convince governments to challenge other governments’ IP-related practices. They will go after access to medicines and access to knowledge policies, as well as the broad copyright exceptions that underpin the AI industry’s business model. There is little doubt about that.
