Mark Twain is reported to have said there are, “lies, damned lies, and statistics”. Just about anything can be measured but, as the economists say, it all depends on the assumptions (the design of the study) and, of course, the data. The better and more objective the design, the better will be the results. The same goes for the data. A just-released study by the Global Intellectual Property Center (GIPC) of the US Chamber of Commerce meets the criteria of both good design and strong data points.
GIPC has just released the fifth edition of its Global IP Index, “The Roots of Innovation”. This study makes a significant contribution to the measurement of standards and performance across a range of intellectual property (IP) indicators, with the goal, as stated by US Chamber President Tom Donohue, to help every nation to continue to improve its IP record. This year’s index “benchmarks the IP standards in 45 global economies, representing roughly 90% of global GDP”, according to the report. This fifth edition, which started by comparing just 11 economies five years ago, scores the performance of countries against six categories of IP protection—patents, copyrights, trademarks, trade secrets and market access, enforcement, and accession to international IP treaties. Given that the focus of this blog is on international copyright issues, I will focus on the copyright elements of the Index, although in most instances the level of respect for IP in one area in an economy is mirrored in the others.
The report highlights some positive developments, noting that among the cluster of global IP leaders (the US, UK, Japan and a number of EU economies) there was both improvement and relatively little difference in the overall scores. The report notes that the signing of two comprehensive trade agreements, the Canada-EU Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP) both “helped raise the bar for protection of life sciences IP, copyrighted content online, and enforcement against IP theft.” Of course the fate of the TPP, signed in February of 2016, is now up in the air given the announced intention of the Trump Administration not to ratify it, but there is talk of the other 11 members still proceeding with the Agreement, without the participation of the US. Japan has already ratified, and there will be a meeting of a number of TPP trade ministers in Chile in March to consider the modalities of rejigging the Agreement into a “TPP Minus One” format. It won’t be easy but is not beyond the realm of possibility, thus keeping some of the gains in the IP area.
The utility of the GIPC Index is that it provides an objective measurement of performance for governments who wish to benchmark their IP standards against their trading partners and competitors. The study also includes a number of other useful indexes that illustrate and document the powerful connection between better levels of respect for IP, and beneficial outcomes in innovation, creativity, economic growth and employment. High scores in the area of copyright protection within an economy have high rates of correlation to more dynamic content and media sectors, greater online creativity, better access to new, licensed music content with a wider array of choice and higher levels of advanced and accessible home entertainment.
In terms of methodology, the Index measures six attributes with regard to copyright;
- Term of protection
- Exclusive rights
- Cooperative action against online piracy
- Limitations and exceptions
- Digital rights management
- Government use of licensed software
Each attribute is worth a point, thus an economy can get a total score of six in the copyright category (out of a total possible score of 35 for the overall index). The US scores the full 6 points while the UK, number 2 in the overall index, scores 5.63, losing a few points on the basis of a shorter term of copyright protection than the US. By way of comparison, Australia (12th on the overall index) scores 4.88 in the copyright area, New Zealand (14th overall) 4.91 while Canada (17th) scores only 3.38 for copyright standards. There is certainly room for improvement there, with one of the weaknesses of the Canadian copyright regime being the area of “limitations and exceptions” (.25) where the courts and legislation have broadened the fair dealing guidelines to the economic detriment of writers and publishers, among others, as I have noted in an earlier blog (Access Copyright v York University).
By way of comparison, the copyright scores for some other countries are Germany (5.38), Singapore (5.24), South Korea (4.99), France (4.99), Malaysia (3.78), and Sweden—perhaps unjustly known as a pirate haven owing to the activities of The Pirate Bay (3.85). Canada shares its middling copyright score with Israel, Hungary and Spain but I suppose can take some satisfaction from the fact that it is in a better place than China (2.28), Russia (1.99), India (1.47) or Vietnam, the bottom-ranker in the copyright category at 1.03
Some of the scoring within the Index is a little hard to decipher. For example, in the area of “term of protection”, the full point requires the 95 year standard of the US. Both New Zealand and Canada have 50 year terms of protection (70 years for sound recordings in Canada) yet New Zealand is given a score of .66 for term of protection whereas the score for the UK, Canada and Australia is .63, even though the UK and Australia already have 70 year terms of general applicability. Both Canada and New Zealand have committed to extend their terms of protection under the TPP agreement, but neither has ratified the agreement or amended domestic legislation.
I am told that the slightly higher New Zealand score is a result of a somewhat arcane provision providing for a 100 year term of copyright protection for “Crown copyright” i.e. “copyright works made by a person employed or engaged by the Crown under a contract of apprenticeship or service”. Crown copyright exists in Canada, Australia and the UK–where depending on what is being protected the term of protection can be “in perpetuity”, 125 years or 50 years but this does not appear to be reflected in the scores. The slight difference is not really material, but I was surprised to see New Zealand score relatively high in the copyright category because it is not what I would call a leader in this area, with the government actively promoting misinformation about the true cost of copyright term extension to the New Zealand economy.
One area of the index not involving copyright but where I cannot resist a personal comment is the low score (i.e. zero) given for “limitations on use of brands” in the trademarks category to countries such as Australia, France, Hungary, the UK and New Zealand because of their plain packaging laws on tobacco products. (Canada is criticized for considering introducing plain packaging for these products but is not marked down in this category). To me, this is a public health rather than an IP issue, and I personally do not think it merits inclusion in the GIPC index. Moreover, to give a score of zero–thus implying that a country does not respect brands or trademark–simply because of action taken to control marketing of a particular product—and one that imperils the health of millions—seems to me to be disproportional. In fact, had the UK not been marked down for this “transgression”, it would have achieved a higher overall score on the Index than the US and been the top performing country in terms of IP standards.
That quibble aside, this year’s GIPC Index builds on and expands the excellent work done in previous years and provides a well-researched and well substantiated resource that is both easily accessible and user-friendly. For those interested in comparing and examining international IP standards, whether in the area of copyright or elsewhere, this is the go-to document.
© Hugh Stephens, 2017. All Rights Reserved.
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