infoJustice

I’ve written before on the U.S. Chamber of Commerce’s International Intellectual Property Index, which ranks the strength of countries’ intellectual property protection based  on publicly available information about the IP landscape in each country. This includes laws, regulations, court decisions, academic studies, analysis from bodies like OECD, and news stories. As I mentioned in my post on the 2014 index, a fair amount of subjectivity goes into the document, which ranks the U.S. #1 and is used to promote the expansion of U.S.-style intellectual property norms.

Today I came across James Nurton’s post on the Managing IP Blog about the multinational law firm Taylor Wessing’s Global Intellectual Property index (GIPI). This comparison of countries’ IP protection ranks the U.S. at 24 out of 43 – tied with Chile and occupying a neighborhood in the list among other countries the U.S. has accused of inadequate IP protection.  

The difference between the “International” and “Global” IP Indexes is based on what each measures. Not only does it account for the difference in the American ranking, it also suggests that the focus of some IP advocacy does not always reflect what people who rely on IP deem important.

The GIPI bases its rankings on

a worldwide survey of IP owners and users giving over 14,000 assessments , as weighted bearing in mind data from 50 objective sources (or ‘instrumental factors’). The latter includes published empirical data, such as the number of patent or trade mark filings and grants, the value of royalty fee payments, R&D expenditure and the origin of counterfeits as seized by customs.

It is unclear from the report how the weights were applied, but at its base, the GIPI seems to be a product of the survey respondents’ views.  Respondents were asked to score countries based on how well they could obtain, exploit, enforce and challenge each of the four main IP rights: patents, copyrights, trademarks, and designs.  They were given the following list of ‘influencing factors’ they could use to justify their score [not to be confused with the ‘instrumental factors’ for weighting].

• Overall costs
• Competence, reputation and specialisation of judges
• Availability of competent professionals advisors
• Speed of procedures/decisions
• Consistency, reliability and ease of predicting decisions
• Strength of court remedies, including amounts of damages awarded and availability of interim/preliminary injunctions
• Adequate or insufficient body of clear IP law
• Ability or inability to recover costs from losing opponent
• Extent to which you can control timetables
• Signatory to relevant international treaties
• Presence or absence of burdensome procedure/bureaucracy
• Ability or inability to attack rights through cheaper/quicker registries rather than courts
• Judgments/decisions influential in other countries
• Renewal costs and ease of renewal
• Openness to alternative dispute resolution/mediation
• Availability of finance/venture capital
• Attractiveness of Tax Regime for IP rights

These influencing factors were based on responses to previous GIPI surveys in which respondents had been “invited… to volunteer in free text.”  In other words, these are the things that previous survey takers had identified as what was important to them.  They amount to a different criteria than the U.S. Chamber of Commerce’s International IP Index – one that seems less concerned with the structure of IP law and more concerned with the practical aspects of using the IP system.

Competence, reputation and specialization of judges, and the availability of competent professionals and advisors, were the most important for copyrights and patents.  Overall costs were the most important factor for designs and trademarks and were the third-most important factor for copyrights, and were less important for patents.  The authors also identified cost-effectiveness of enforcement as opposed to the cost of obtaining a right.  Here, the United States was last for designs, second-to-last for copyrights, and third-to-last for trademarks.  It was #26 for patents.  Overall, it seems that the expense of the copyright, trademark, and design systems in the U.S. weighed down the U.S.’s performance significantly.  (The U.S. fared better in the patent rankings, tying with France for #10.)

Unfortunately, Taylor Wessing doesn’t summarize raw survey results or describe the use of the instrumental factors to weigh them and produce a final score.  There is a short blurb about the U.S. ranking on the report website, though not in the printable PDF version of the report, which notes that the copyright score fell from last year, and that rights holders “were likely to have been unsettled” by the Google Books case. However, with no published data supporting this assertion it is hard to know what to make of it:

Unlike the U.S. Chamber of Commerce, Taylor Wessing does not present correlations between its index scores and economic variables like access to capital or R&D spending.  However, it does report the following:

We also invited respondents to identify  which countries they see as the key growth markets over the next five years… The jurisdictions mentioned most frequently for growth were China and Japan, with India, the USA, Brazil, Vietnam and South East Asia also getting frequent mentions.”

None of these countries were in the top 10.  Japan was ranked 14, but the others were all below-median.  So the survey respondents expect growth where the IP landscape is less to their liking than in highly ranked countries.

One slightly unrelated note:  Roy Germano and Chris Sprigman just published The U.S. Chamber of Commerce’s IP Myth in Slate.  It is a good read about the correlations between the International IP Index and economic variables.