The US Chamber of Commerce’s Global Innovation Policy Center (GIPC) has just published its 9th annual report assessing and ranking the intellectual property (IP) policies of 53 countries worldwide against a set of performance indicators, 50 in all. IP policies and practices are evaluated in nine categories, covering patents, copyrights, trademarks, design rights, trade secrets, commercialization of IP assets, enforcement, systemic efficiency and membership in international IP treaties. Each category has a set of specific sub-criteria against which each economy is evaluated. In the case of copyright, the seven sub-categories are term of protection, exclusive rights, injunctive-type relief, cooperative action against piracy, limitations and exceptions, digital rights management, and government use of licensed software. There is a detailed report on each of the 53 economies, a chapter summarizing the global IP environment in 2020 and chapters highlighting key issues in each of the categories. Produced for the Chamber by the consulting firm Pugatch Consilium, it is truly a magistral work, an amazing compendium of information and insights.
While the country rankings are interesting, it is the trends as much as the rankings that are important. In 2020, GIPC concluded that 60 percent of the 53 countries measured improved their overall scores over the previous year, with an overall improvement rate of over six percent since 2014, with improvement rates in many large developing countries exceeding that substantially. The score for China, for example, has improved by 18 percent over that period while India’s has increased by 13 percent. This year the report understandably focusses on the role of IP industries in meeting the challenges of COVID-19, from the rapid development of vaccines to the role of digital industries in keeping us connected and sane during periods of COVID lockdown. In particular, the research-based pharmaceutical industry has stepped up to meet the challenge of developing several vaccines in a historically short period of time, and then producing them to scale. The report states clearly what must surely be an intuitive conclusion for most people, namely that “economies with stronger national IP environments have higher levels of innovation capacity and produce more innovation in the form of new products and technologies”.
I last wrote about the GIPC Index Report in 2017 and 2018, focusing primarily on its copyright aspects, as I will do today. Not having looked at it closely for the past three years, I thought it was time to see what has changed, what progress has been made, and what new challenges have surfaced, particularly with respect to the copyright world. The report notes that there continues to be a challenging environment for creators and copyright holders in the majority of the economies sampled, with 32 of the 53 economies failing to reach a score of 50%. The scores (out of 100) ranged from a high of 96.43 for the US to a low of 18.29 for Vietnam. Some economically advanced countries, like Switzerland, scored below the 50 percent mark, and there is an extensive discussion of the problems with protection of copyright in Switzerland in the Copyright chapter.
Copyright in Switzerland
The problem has to do with a loophole in Swiss law related to the protection of personal data that makes it difficult to combat online infringement, leading to the country becoming a preferred location for pirate sites. Also, there is a private use exception allowing downloading even if the material downloaded is infringing, and there are no injunctive relief (site blocking) measures. Overall, Switzerland scores just 48.29 in the copyright category although it scores highly in other categories and is ranked 9th overall out of 53.
Effect of Trade Agreements
One of the Report’s key findings is that “trade agreements continue to substantively improve national IP frameworks. That is certainly true with respect to trade agreements signed by the United States given that strengthening of IP protection is always one of the prime negotiating goals of the US Trade Representative, the US trade negotiator. However, even in the case of trade agreements not involving the US this principle holds generally true, although perhaps not to the same extent as with agreements to which the US is a party. The recent Regional Comprehensive Economic Partnership (RCEP) Agreement is a case in point. Although its IP chapter was not the most sophisticated or far-reaching, it nevertheless marked a positive step forward in terms of levelling up standards of IP awareness, compliance and commitments across 15 economies of varied size and development in the Asia-Pacific region.
A major trade agreement cited in the GIPC Report is the new NAFTA (aka USMCA/CUSMA) Agreement, which has led to positive copyright changes in both Canada and Mexico.
Canada and the CUSMA/USMCA
In the case of Canada (which scored 16th overall and 19th in the copyright category, at 57.71), the report notes that under the terms of the CUSMA/USMCA, Canada extended the terms of “some” copyright terms to 75 years. This actually relates to a very minor category of works (anonymous and pseudonymous works) where, if the identity of an author is unknown and the work is unpublished, the work will now be protected for 75 years following its creation (an increase from 50 years of protection). If it is published during this period, copyright will subsist for a further period of 75 years from the date of publication. However, if the author becomes known, copyright reverts to life of the author plus 50 years, the current period of protection. But that is going to change by the end of 2022 at the latest as Canada made another commitment in the USMCA that has not yet been brought into effect, namely to extend the term of copyright protection for a known, published work by an additional twenty years beyond the date of death of the author, from “life plus 50 to “life plus 70”.
How exactly that is going to happen is currently the subject of a public consultation, as I noted in a recent blog (Canada’s Copyright Term Extension Consultation: Why all the Tinkering Around the Edges?) with various options being floated to deal with orphan works (where the author is unknown or cannot be located), as well as out-of-commerce works. There is also the outside possibility that extension of the term of protection will be made subject to a registration requirement, an additional bureaucratic hurdle advocated by some copyright minimalists. This would be a mistake, and happily the language in the government’s consultation paper seems to suggest that this is not a favoured option. Presumably when the “life plus 70” standard comes into effect, Canada’s score under the “term of protection” indicator will increase further.
Mexico and the USMCA
Mexico (23rd overall, 20th in copyright at 54.14) also comes in for a shout-out owing to USMCA commitments in the copyright area. Changes to Mexican law as a result of USMCA commitments include a new notification system for removal of infringing online content, provisions outlawing the use, manufacture, sale, importation and distribution of DRM (digital rights management) and technical circumvention devices, and making illegal the use, manufacture, and sale of satellite signal decoders. These are all incremental steps toward a better environment for the protection of copyrighted content in Mexico, although there is still room for improvement.
Other countries singled out in the copyright section include China, Saudi Arabia, Ukraine and Costa Rica. China (24th overall, 25th in copyright at 43.29) introduced a number of changes to strengthen its copyright laws as a result of bilateral discussions with the US in 2020, among them new definitions of copyrightable material, clearer definitions of performance rights, sound recording and broadcasting, and increases to statutory damages for copyright infringement.
Saudi Arabia (37th overall, 31st in copyright at 36.14) was given credit by GIPC for stronger enforcement efforts. This is a welcome change as the Kingdom has long been a hotbed of piracy, including state-sponsored signal theft directed at Qatar’s BeIN Sports Network. This was done primarily for political reasons as I noted in my blog post on “Content Piracy as Hybrid Warfare”. This situation now seems to have been resolved after a World Trade Organization (WTO) panel ruled against the Saudis and found them in violation of WTO rules by virtue of failing to protect the intellectual property (broadcast signals) of an entity based in another WTO member state (Qatar). For this and other reasons, the Saudis finally took action to block a number of websites that had been distributing Illicit Streaming Devices (ISDs) that were providing access to a Saudi-based pirate sports network (protected by senior Saudi officials) competing with BeIN Sports.
Use of Unlicensed Software
Government use of unlicensed software is the big copyright issue in both Ukraine (39th overall, 43rd in copyright at 26.14) and Costa Rica (25th overall, 22nd in copyright at 49.86), with Ukraine failing to make any progress over the past eight years despite an official edict requiring government offices to use only licensed software. Costa Rica, on the other hand, has managed to get a handle on the problem by implementing a new automated registration, compliance and software asset management platform, allowing all ministries and government organizations to file annual software audits and proof of licensing compliance. This is a good example of how simply passing a law requiring government entities to acquire software licences has no effect without a concrete and enforceable implementation and monitoring plan. Costa Rica has figured this out; Ukraine is either unable or unwilling to do so.
In addition to analysis of IP performance by category, the GIPC Index includes detailed country reports on all 53 economies included in the survey. This makes it an invaluable comparative resource. Whether you want to know more about the state of enforcement in Algeria, systemic efficiency in Morocco or how copyright is protected (or not) in Venezuela, it is all here, along with a complete explanation of how the various indicators were assessed and scored. I have mentioned the scores of the countries highlighted in the copyright section, but if you want to know how “your country” fared you can check the results quickly by going to the Executive Summary of the Report.
Let’s hope the trend of steady improvement seen over the past several years continues, in the area of copyright as well as the other aspects of intellectual property measured by the Index. Kudos to GIPC for producing this invaluable report.
© Hugh Stephens 2021. All Rights Reserved.