Gabriel J. Michael / gmichael at gwu dot edu
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Public figures like to claim that the United States has the “highest” intellectual property (IP) protections in the world. For example, as Simon Lester over at Cato recently noted, in introducing the U.S. Department of Commerce’s Global Intellectual Property Center index, Senator Orrin Hatch claimed “The U.S. has the highest intellectual property rights standards in the world.”
Many other senators feel similarly. Back in 2011, 28 senators (including Hatch) wrote a letter to President Obama urging him “to preserve the highest standards of protection for intellectual property rights in the Trans-Pacific Partnership (TPP) Trade Agreement.”
Like many political claims, it’s not clear that these statements are even falsifiable. After all, what exactly does it mean to have the “highest” IP protections? How do we compare the “height” of IP protections across different areas like patents, copyrights, and trademarks?
But to the extent that such claims might be falsifiable, let’s take a look at the facts. It turns out that if you actually compare the “height” of various IP protections around the world, the U.S. frequently does not have the “highest” protections. In some cases, the U.S. doesn’t have any protections at all. Consider the following areas:
In the U.S., the normal copyright term for a natural person’s published work is the life of the author plus 70 years (terms are different for corporate works, unpublished works, etc., but let’s just consider the basic term).
- Mexico’s comparable term is the life of the author plus 100 years. Note that this means in the ongoing Trans-Pacific Partnership negotiations, the United States is proposing a shorter copyright term than Mexico.
- Côte d’Ivoire offers a term of life plus 99 years.
- In Spain and Colombia, the basic term is the life of the author plus 80 years.
- In Guatemala, Honduras, and Samoa, it’s life plus 75 years.
Data Exclusivity for Pharmaceutical Clinical Trial Data
Data exclusivity refers to intellectual property protection for the clinical trial data submitted by pharmaceutical firms to regulatory authorities in order to gain regulatory approval for drugs. Data exclusivity protection is separate from patent protection, and is generally automatic (i.e., it does not depend on novelty, etc.). Data exclusivity can create an effective monopoly for a drug in the absence of a patent, and even if a patent for a drug is invalidated. Data exclusivity is a sui generis form of intellectual property, first adopted in its current form in the U.S. in 1984. About 73 countries around the world offer U.S.-style data exclusivity.
- Excluding biologics, the U.S. offers 5 years of data exclusivity.
- In contrast, the European Union’s original data exclusivity law mandated a minimum of 6 years of protection. The current law mandates a minimum of 10 years.
- Both Russia and China were obliged to offer 6 years of data exclusivity as part of their WTO accession agreements.
- At one point, Guatemala offered 15 years of data exclusivity, although this was later rolled back.
Some U.S. readers may not even be aware that a significant number of countries around the world offer protection for utility models, a.k.a. “petty patents,” which are designed to protect incremental innovations, and thus have a lower threshold to obtain.
- Over 60 countries offer protection for utility models, generally lasting from 7 to 10 years.
- The U.S. does not offer any comparable protection (design patents are altogether different).
Many countries around the world do not allow surgical methods or procedures to be patented; alternatively, some countries allow such methods or procedures to be patented, but do not allow the patents to be enforced.
- The U.S. takes the latter approach. In 1996, President Clinton signed an omnibus appropriations bill that included a rider prohibiting patent infringement suits against medical practitioners for potentially infringing medical or surgical procedures.
- In contrast, Australia explicitly considered enacting a U.S.-style medical treatment defense to patent infringement, and rejected it.
This was Simon Lester’s example. Practically speaking, the United States offers roughly comparable protection to geographical indications in the form of collective and certification marks; specifically for wines, there are also American Viticultural Areas. However, the transatlantic dispute between the U.S. and the European Union is not so much over the failure of the U.S. to provide an adequate form of protection as it is over the failure of the U.S. to adequately protect European geographical indications.
- While the EU-U.S. Wine Accord of 2006 resolved a number of long-standing issues, the EU had to accept the continued use of “semi-generic” names by U.S. winemakers. The most famous is of course Champagne, but other familiar names include Burgundy, Claret, Chablis, Port, and Sherry. U.S. winemakers must disclose the actual origin of the wine, but in practice this ends up looking like this:
- It’s also worth noting that in Europe, and increasingly in other parts of the world, geographical indications protect far more than just wine, e.g., spirits, cheeses, meats, coffees, teas, honey, and crystal. I find it amusing that I can walk into a supermarket and buy “Greek yogurt” and “Swiss cheese” that contains not a single ingredient from those countries. The U.K. did not find this amusing, and last year banned Chobani from selling “Greek yogurt” in England and Wales. U.S. firm Chobani bizarrely claimed that “Greek yogurt” was not defined by a reference to its place of origin.
Moral rights include the right of attribution and artistic integrity, inter alia, and are often perpetual and inalienable. Technically the U.S. offers some moral rights to some creators under the Visual Artists Rights Act, but the scope is far more limited than in many other countries. For example, the VARA does not apply to musical or literary works.
I’m not going to get into the details of a fairly complex topic, but suffice it to say that the U.S. has no interest in protecting traditional knowledge through intellectual property law, and opposes other countries’ attempts to do so in discussions at the World Intellectual Property Organization.
Here’s a map of what countries currently protect traditional knowledge via intellectual property law:
Fashion Design Protection
The U.S. has repeatedly failed to adopt fashion design protections similar to those offered in Europe.
Apart from shorter copyright and data exclusivity terms than many countries, the U.S.’s most egregious weakness in intellectual property protection is its broad fair use laws. Unlike the vast majority of countries in the world, which offer an exhaustive list of precisely defined limitation and exceptions to copyright, the U.S. fair use doctrine is so vague and abstract as to permit completely unforeseen uses of copyrighted works without requiring any license or permission from the copyright holder.
For example, such fair uses include time-shifting by reproducing entire video recordings, the digitization of entire printed works, and the copying of images and text to be used in search engine caches.
Best ≠ Highest
The implication of Hatch et al.’s statements, of course, is that not only does the U.S. have the “highest” intellectual property protection, it also has the best. That’s certainly what the Commerce Department believes.
But there’s a contradiction here: as I’ve shown above, the U.S. does not in fact have the “highest” intellectual property protection in many areas. Thus, if the U.S. does have the “best” IP protection in the world, this means that the best protection is not the highest protection.