Australia scored pretty well, coming in fifth out of the 25 countries covered by the index, behind only the US, UK, France and Singapore. However, on closer inspection this is probably not something of which we should be especially proud. While the GIPC index is touted as a measure of how well each country safeguards IP to ‘propel the creation of jobs, protection of public safety, access to future innovations, and stimulate competition in the global economy’, it might better be described as a measure of how cravenly each country kowtows to the interests of the US enterprises represented by the Chamber of Commerce.
For example, a country can gain points for entering into a free trade agreement, such as the Australia-US FTA, or by providing an extension of term for pharmaceutical patents as compensation for the time taken to obtain regulatory approval. However, countries were scored down for such infractions as failing to provide ‘adequate’ criminal penalties for IP infringement.
However, Australia’s greatest crime against the GIPC criteria was the introduction of legislation mandating ‘plain-packaging’ (actually, restricted branding, since the packs are far from plain) of tobacco products. Apparently, this one limitation on trade mark use in Australia sends ‘a chilling message to brand owners interested in selling in the Australian market’, and resulted in a loss of a whole point in the index, which would have placed Australia above Singapore, in fourth place!
Bouquets…The GIPC identified Australia’s ‘key areas of strength’ to be:
- providing a broad scope of patentability for pharmaceutical inventions (no doubt influenced by the recent High Court decision ruling that methods of medical treatment are patentable in Australia);
- patent term extensions for pharmaceutical products;
- the (somewhat limited) scope of limitations and exceptions to copyrights and
- the existence of digital rights management (DRM) legislation, i.e. the provisions of the Australian Copyright Act 1968 which make it an infringement to circumvent ‘technological protection measures’, whether or not any infringing copy is subsequently made; and
- what the report describes as ‘relatively low’ counterfeiting and piracy rates.
…and BrickbatsWith regard to Australia’s ‘weaknesses’, the GIPC report notes that Australia’s overall score dropped from 87% of the maximum possible in 2012 to 81% in 2014. However, this is apparently not due so much to any weakening of IP protections over this period, but rather to changes in the scoring methodology in 2014 such that scores ‘better reflect existing weaknesses in Australia in pharmaceutical patent protection; the online copyright sphere, including an adequate notice and takedown mechanism; and enforcement of intellectual property rights, particularly in terms of civil remedies.’
If you are thinking it odd that pharmaceutical patent protection seems to be both a ‘strength’ and a ‘weakness’, the answer to this apparent contradiction actually lies outside the Patents Act 1990 in the Therapeutic Goods Act 1989. The GIPC is concerned that there are circumstances in which patent-holding companies are not provided with adequate notice when a competitor is proposing to introduce a generic product that may infringe a patent.
The GIPC report also makes vaguely critical noises about the pre-grant opposition system in Australia.
However, as I have already indicated, the GIPC saves its biggest rap over the knuckles for Australia’s introduction of legislation restricting the use of trade marks on tobacco packaging. In a number of places the GIPC somewhat disingenuously neglects to mention that the restrictions are limited to tobacco products. For example, in its summary of key findings, under the heading ‘Moving Backwards’, it contends that ‘Australia’s plain packaging requirements severely limit the ability of trademark owners to exploit their rights, and send a chilling message to brand owners interested in selling in the Australian market’, as well as making a point of the fact that ‘[i]n 2013, five countries brought action against Australia in the WTO on the basis that the new law violates Australia’s WTO commitments.’
As far as the contribution to the index is concerned, Australia scores zero, out of a possible one point, in the category of ‘non-discrimination/non-restrictions on the use of brands in packaging of different products.’
That’s right, a total fail, on the basis of a restriction which applies to just one category of products, which is applied for the purpose of furthering public health policy!
ConclusionThe GIPC describes its IP Index as ‘a rigorous statistical tool that business and policy makers can use to measure a country’s direction as they seek to chart a course to promoting an innovative and creative economy.’
This is a laughable claim. It is impossible to give a great deal of credence to this report, when it is is so blatantly biased in favour of the interests of the members of the US Chamber of Commerce. A ‘good’ IP system, from the point of view of the GIPC, is one that places all other considerations below those of US businesses, and their desire to have ‘strong’ protections for their IP.
The fact is that IP rights reflect a balancing act between the private interests of creators and a wide range of broader public interests. The GIPR represents only one particular group of private interests. There is nothing necessarily wrong with that – everybody is entitled to put their own case forward for consideration. But please do not try to tell me that the GIPC International IP Index is some kind of objective statistical tool that will help everyone to ‘chart a course’ to a wonderful new world of innovation and creativity. Because that is just a lie.