Annually, the United States of America releases two IP indicators of countries which falls short of its standards of IP protection. First being the International IP Index (the Index) by the Global Intellectual Property Center (GIPC) around February of each year. Followed by the paper tiger instrument called the Special 301 Report by the Office of the United States Trade Representative (USTR) around the last week of April. (For more on the Index, see here and on the Special 301, see here).
In this post, I want to highlight the close nexus between these two indices with a special reference to this year’s Index and the Special 301 Report.
The Differences :
The Index was devised as a road map for countries to formulate IP related policies that would enable them to reach their full innovative and economic capabilities. While, the Special 301 Report assess the IP regimes of U.S’s trading partners which act as trade barriers for its corporations. Thus, while the former is an economic parameter, the latter is a political one (even though toothless – being violative of the WTO Dispute Settlement Process. Read more on this here).
The Index is an academic exercise aimed at studying the benefits accruing to a nation’s economy on account of a robust IP regime. On the other hand, the Special 301 surveys IP policies of nations to determine losses to its corporations. With slight restraint, I’m tempted to say that the Index is merely persuasive in value, while the latter is a coercive “paper tiger” instrument ( the legality of the Special 301 Process being questionable. Read more on this here).
The ambit of the Special 301 is much wider than the Index. This year, the USTR analysed IP regimes of 73 trading partners while the GIPC mapped the IP environment of 38 economies of the world. However, with respect to subject matter, the Index has a wider reach. It’s based upon 30 indicators spanning six categories – patents, copyrights, trademarks, trade secrets, enforcement, and international treaties. Further, not only does the Index measure the IP strength of a nation but also gauges the benefits accruing from those strengths.
The Nexus or the Cosy Camaraderie :
The objections raised by both these indices this year with respect to India bear close semblance. A plausible reason could be that the Index uses the Special 301 as a source for arriving at its findings and vice – versa.
Further, at the release of this year’s Index, Professor Meir Pugatch (the brain behind the Index) was questioned on the interplay between the two indices. To which, he replied that though there were many overlaps between the two, the Index reflected the overall sentiment of its members (basically the U.S. corporate interest) while the Special 301 took into account diverse stakeholders.
This raises an eye – brow, for the prevalent extent of lobbying by U.S. trade groups is no secret. Professor Peter Drahos’s articulation on the Special 301 in his treatise the Information Feudalism is noteworthy. According to him, the Special 301 was “a public law devoted to the service of private corporate interests.” (Page Number 89).
This is corroborated by the statistics compiled by the American University’s Program on Information Justice and Intellectual Property. According to it, in the 2008 Special 301 Report, 86% of the nations singled out by the IIPA and 75% of the nations singled out by PhRMA were in that year’s Report.
- Non – conformance of patentability criteria to international standards.
- Absence of regulatory data protection and patent term restoration.
- Unfair and arbitrary policy on issuance of compulsory licenses.
- Not a contracting party to major international treaties such as the WIPO Internet Treaties, the Singapore Treaty on the Law of Trademarks and the Patent Law Treaty.
- Proposed amendments to patent rules incentivizing localized manufacturing.
- With respect to the pharmaceutical industry, lack of protection against unfair commercial usage.
- Lack of effective notification system for marketing approval for generics.
- Copyright related issues – (i) Term of protection (ii) Legal measures providing exclusive rights for preventing infringement of copyrights and related rights (iii) Scope of limitations and exceptions (iv) Absence of a Digital Rights Management Legislation (v) Absence of implementation of policies requiring proprietary software used on government ICT systems to be licensed software.
- Trademark related issues – (i) Term of protection and renewal period (ii) Non – discrimination and non-restriction on the use of brands in packaging of different products (iii) Ability of trademark owners to protect their trademarks (iv) Legal measures for redressal for unauthorized usage of trademarks (v) Availability of frameworks for promoting action against online sale of counterfeit goods.
GIPC’s Submission to the USTR for the 2016 Special 301 replicates the issues raised by it in the Index. Though distinctive in their nature, India related findings of both the indices are very similar particularly in the patent sphere. Thus, indicative of the partisan nexus between them. Professor Drahos elucidating this cosy camaraderie as –
By the early 1990’s the USTR, the intellectual property lobby and the companies for which they worked had a closeness borne of participation in a common crusade.
This makes me ponder whether stakeholders barring the lobbyists (public interest organizations, academic institutions and foreign governments) have a real say in the Special 301 Process? I think not.