Earlier this week, the U.S. Chamber of Commerce released the second edition of its Global Intellectual Property Index, a report which grades countries on the strength of their IP protection. This year’s index covers 25 countries, including all of the BRICS and most of the countries in the TPP negotiations. Countries are evaluated among 30 individual factors, which fall into one of six categories – Patents, Related Rights, and Limitations; Copyrights, Related Rights, and Limitations; Trademarks, Related Rights, and Limitations; Trade Secrets and Market Access; Enforcement; and Membership and Ratification of International Treaties. The full index is here, and the summary is here.
Introducing the Index at the launch event, David Torstensson said that the Index includes information on both the “legal situation” and “practical realities” in different countries. The authors based their scores on information from sources that are openly available, such as laws and regulations, industry documents, academic papers, and news stories. Nonetheless, there is still a fair amount of subjectivity that went into the scoring. One could argue about many of the decisions. For example:
- The index reports that Chile’s notice and takedown system, which require a court order for a takedown “does not meet the requirements of its FTA with the United States.” Unsurprisingly, officials from the Chilean Ministry of Foreign Relations disagree with this interpretation.
- India is marked down for many items, including the strict patentability standards found in Section 3(d) of it patent law, which the report says it out of compliance with its WTO obligations. Other legal experts do not agree.
- The U.S. is marked down in the copyright limitations and exceptions section of the index, not due to anything that currently exists in law or practice, but due to uncertainty about the future. For instance, the report notes that “in Authors Guild v. Google, Inc., the fair use principle in the distribution of e-books is still being considered by a district court.” The U.S. is also marked down in this section because “changes that could adversely affect rights holders, such as a ‘digital first sale’ doctrine, have been sought” as part of copyright reform.
At American University, we have a project to devise a different index; one that would look at the strength of user rights in copyright protection. We are still developing the questions that will yield the index, and we have have also run up against the problem of subjectivity. It is easy to ask questions around black letter law, for instance, whether or not a country has a particular legal provision in place, or whether contracts can override statutory limitations to copyright. It is difficult to get at how copyright user rights work in practice – different people with valid expertise will have different ideas about how user rights work in any given country – but this is really the more interesting question. One solution we’ve considered is to have separate components for the black letter law sections and for the more subjective questions about how user rights work in practice. One could view the index as a whole or view the components separately, knowing that the section on copyright-in-practice is more subjective.