The GIPC Index: Measuring Global IP Standards

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Used with permission

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.

 

Here Come the Vikings: Piracy in the Nordic World

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Source: shutterstock.com

What is it about Scandinavia and piracy? In Iceland the Pirate Party was touted to win the recent general election and form a government, going from just three members in the Icelandic Parliament, or Althing, to being the largest party among the more than dozen parties represented in the Parliament. In the end the Pirates made strong gains, more than tripling their seat representation, to 10 members in the 63 seat Parliament, although a conservative party won the most seats. It took many months to form a governing coalition and for a time it looked as if the Pirate Party would be asked to lead the formation of a government, but in the end they “sailed away”. After weeks of negotiations a government has just been formed, but without Pirate representation. Continue reading “Here Come the Vikings: Piracy in the Nordic World”

Where does Copyright Governance fit within Government?

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http://www.loc.gov

The recent controversy over the effective dismissal/forced resignation of Maria Pallante, the former Register of Copyrights of the US Copyright Office (USCO) by the Librarian of Congress, Dr. Carla Hayden, and the debate as to whether it was logical for the custodian of copyright (and the advisor to Congress on copyright issues) to be located within the Library of Congress, raises the issue of how and where copyright registration is managed in other countries. The US model has long historical antecedents of course, but as far as I know is not replicated elsewhere. That does not mean the US model does not work, or that the Copyright Office should be placed elsewhere within government, but it may be informative to look at what other countries have done. Continue reading “Where does Copyright Governance fit within Government?”

The Super Bowl and the Future of Canadian Broadcasting

 

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Source: shutterstock.com

To most readers of this blog outside Canada, to lump the Super Bowl and the future of Canadian broadcasting into one sentence must seem like a total non sequitur. Except that it’s not really such a stretch. The issue is not the actual Super Bowl game itself but the ads that will accompany it, broadcast on US host network Fox. For some stakeholders in Canada, the Super Bowl ads are the tip of the iceberg, signalling the first step in the unravelling a longstanding policy that has been important economically to the broadcast and creative sector in Canada. The core issue is all about the simultaneous substitution (so-called simsub) of Canadian ads into US programs distributed in Canada by Canadian broadcast platforms (i.e. cable and satellite providers). If this all sounds a bit arcane and complicated, it is– so let me explain. Continue reading “The Super Bowl and the Future of Canadian Broadcasting”

The Artist as Underdog

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Used with permission of the artist

It was a classic case. Canadian graphic artist Jody Edwards, noted for her realistic and original feather watercolours, spotted some of her artwork printed on shirts for sale at the retail clothier Winners. It turned out that some of the same shirts were also for sale in Canada at Marshalls and Nordstroms, via online retailer Nordstrom Rack. When she contacted both companies, Marshalls said they would stop selling the merchandise while Nordstroms said they were sold out and would not restock. However, if she wanted to pursue payment for her copyrighted work, she was told she would have to go after the supplier, a company called Bella M Inc., based in Los Angeles, and marketing under brand name Vanilla Sugar. Her story was publicized by a CBC “Go Public” report. She had turned to the program for help in tracking down the L.A. supplier, which had as many as eight different company names and thirteen different addresses. Continue reading “The Artist as Underdog”

India’s Television Dilemma: Regulating for Consumers or Undermining Copyright? (It Doesn’t Have to be Either/Or)

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Source: http://www.shutterstock.com

An interesting drama is currently being played out in India, according to some the world’s second largest pay TV market. It pits pay-TV networks (copyright owners) against the broadcast regulator, the Telecom Regulatory Authority of India (TRAI). Continue reading “India’s Television Dilemma: Regulating for Consumers or Undermining Copyright? (It Doesn’t Have to be Either/Or)”

Starting the New Year off Right: Effective Ways to Fight Online Piracy in Canada–(Don’t Pick on Granny!)

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Source: shutterstock.com

It was inevitable. Sooner or later an infringement notice would arrive in the inbox of someone’s granny accusing her of illegally downloading an online warfare video game/hip hop music video/22nd Century rogue robot movie (take your pick). In this case it was the warfare game, a game which our grandmother had never heard of and would have no reason to download. In May of 2016, eighty-six year old Christine McMillan reportedly received such a notice for downloading Metro 2033, an “apocalyptic first person shooter” video. The notices, which came into effect in 2015 as part of revisions to Canada’s copyright act in 2012, are based on notification by content owners (rights holders) to ISPs of IP addresses identified as engaging in infringing behaviour. By law, the ISPs are required to forward the notice to the registered user of the IP address in question, drawing the alleged infringement to the subscriber’s attention. The purpose of the notices is to raise awareness about piracy, to educate consumers and to dissuade them from continuing infringing behaviour. It is commonly known as the “notice and notice” system, after the fact that the rights holder issues a notice to the ISP and the ISP then passes on that notice to the subscriber.

Without doubt most if not all infringement notices are accurate in terms of identifying where the infringing behaviour is taking place, but given the complexities of the internet one can never be sure which individual is actually engaging in the proscribed activity. In the case of our shocked grandmother, it is always possible that someone else had access to her computer at times, or perhaps an error was made in identifying the ISP address (just one digit can make a big difference), or maybe her wireless network was not secure and someone in the neighbourhood was poaching on her account. While there are many explanations for the occasional mistaken notice, when something like this goes wrong it feeds public perceptions that rights holders are persecuting “innocent” consumers. The media is quick to pounce. “It feels like blackmail” scream the headlines, detailing stories of “traumatized” students and others receiving notices demanding payment for illegal downloads.

The problems stem not just from potential errors in identifying the actual infringer, but largely from companies engaged by some rights holders to seek payment from alleged infringers, even though the “notice and notice” regime makes no provision for levying fines or requiring payment. The Government of Canada website set up to explain the process is very clear;

“The Notice and Notice regime does not impose any obligations on a subscriber who receives a notice and it does not require the subscriber to contact the copyright owner or the intermediary”.

There is provision under the law for sanctions, with a maximum liability of $5000 for all non-commercial infringements. Such an infringement would have to be pursued in a court of law, however, with a judicial determination as to the amount of penalty. This is unlikely to happen except in extreme cases.

What has attracted public attention is the inclusion of “settlement notices” issued by the collection companies which are attached to some notifications of infringement. This is what happened in the case of Christine McMillan. Typically these notices draw the attention of the recipient to the alleged infraction, and invite them to contact the representative of the rights holder to discuss a settlement. Depending on your point of view, this has been construed as stretching the law to frighten recipients into self-identifying and to coerce them into reaching a settlement, or as an effective means to combat piracy, as claimed by some of the firms sending the settlement letters. The “effectiveness argument” is based on the principle of making consumers aware that there is a cost to infringement while offering them a simple and relatively inexpensive way of settling without litigation. In Australia there has been talk of pursuing a “traffic fine” approach to get the message through to consumers accessing infringing content that there is a price to be paid for ignoring the law. Interestingly, the collected funds will be used for consumer education about piracy.

Like the half-full or empty glass, much depends on one’s perspective and how the message is sent and received when dealing with matters such as personal infringing behaviour. It is a delicate balancing act to make consumers aware that there is a potential cost to piracy, while not alienating the public and potentially painting the content industry as bullies harassing vulnerable parties, such as grandmothers. What is the right mix of carrot and stick, and to whom should the stick be applied? There are no easy answers, but too much stick applied to the wrong parties can be counter-productive, as was amply demonstrated by the lawsuits launched by some content owners in the early 2000s.

The focus of the Canadian “notice and notice” regime is on consumer awareness, education and dissuasion rather than punishment. To reinforce this message, the Motion Picture Association-Canada has put up the website “Respect Copyright in Canada” explaining the purpose of the “notice and notice” regime and offering clear and useful guidance to consumers regarding what to do if they receive an infringement notice. The most important message of course is, “stop illegal downloading” and then “take steps to secure your Internet account”. The website also makes it clear that if the alleged behavior stops, no additional notices will be sent. To supplement this warning system is another very useful website, “Where to Watch in Canada”, which guides consumers to legitimate online sources of movies and TV content in Canada.

Online piracy is an important issue, in Canada as elsewhere. Repeated infringers who express disdain for the law and who see nothing wrong in appropriating content without payment may be beyond the scope of education, and in such cases there may be a place for some form of penalty. However, I still believe that most consumers, if made aware of the consequences of infringement both for themselves and for the artists and industries that create the content they enjoy, and if pointed to easily accessible sources of legitimate content, will avoid the pirate websites. There can be legitimate debate about the best ways to deal with online piracy, and there are a number of methods that have proven effective—but picking on granny is surely not one of them!

© Hugh Stephens 2016. All Rights Reserved.