Even if that’s not ideal, it’s the most common and predictable method of definition.

The importance of norms of behavior and social protocols used by governmental institutional actors related to enforcement is highlighted by Erick Robinson, chief patent counsel for Rouse, an international law firm specialising in IP. According to Mr. Robinson (FT, 2015), “The Chinese government's new specialised IP courts now provide companies with an enforcement mechanism comparable to, if not better than, those in Europe and the US (…) but not all patent owners should rejoice (…) first, companies must have friends in China. In a country where everything is based on relationships, every company must have multiple levels of relationships with both government officials and influential Chinese industry leaders…”. This quote illustrates the importance of how effective protection of IPR in some locations depends not only on clear and extensive Law on the books, but also on understanding norms of behavior connected to Laws in practice. This requires an understanding of the norms of behavior of agents involved in enforcement and being embedded in complex social protocols that influence how Law in practice works. Effective protection of IPR therefore requires Law on the books and Law in practice to work in a complementary way and be available to all IP right holders regardless of their country of origin. In this context, liability of foreignness connected to IPR arises from misunderstanding behavioral aspects of key agents that enforce the Law in practice (Khoury et al., 2014; Orr and Scott, 2008).

The review found twenty-one indices with the potential for use as proxies for the measurement of the quality of Law on the books (see Table 1). Most of the measures focused on capturing the availability and scope of Law on the books provisions for different types of IP such as patents (e.g. Bosworth, 1980; Evenson, 1990; Ginarte and Park, 1997) copyright and trademarks (Reynolds, 2004), trade secrets (Lippoldt and Schultz, 2014), plant varieties (Campi and Nuvolari, 2015), and TRIPS (Hamdan-Livramento, 2009). In addition, some studies developed measures that capture the availability of Law on the books provisions related to specific industries such as the pharmaceutical industry (Liu and La Croix, 2015; Pugatch, 2006). Two studies focused specifically on measuring the availability of Law on the books provisions related to the administration process of patent applications as carried out by national patent offices (de Saint-Georges and de la Potterie, 2013; Yang and Sonmez (2013).

The methodology followed to quantify and calculate the IP index scores is almost identical for all twenty-one studies, that is, by counting the availability (or not) of certain Law on the books provisions using dichotomous variables. Once a specific IP law is introduced in a country, it is documented in the book-law provisions and becomes available to the public, allowing researchers to collect longitudinal information about the availability (or not) of a particular law. Existing studies therefore measure the availability (1) or not (0) of Law on the books provisions, the sum of which constitutes the overall score of each index. Given that data on Law on the books is extensively available in the legal literature, indices measuring IP Law on the books are able to cover extended time periods and develop scores for a large number of countries.

There is a possible internal validity problem with many of the existing studies because of conflating the availability/scope of laws with the measurement of the quality of law on the books. Current indices focus on the measurement of the extent of availability of IP law provisions in a given country. An inherent assumption in these approaches is that higher numbers of legal provisions related to the IP regulatory system of a country indicate a system with good quality Law on the books. The number of IP related legal provisions however does not necessarily reflect good quality Law on the books. First, using the example of software patentability that was incorporated in the latest update of the Park (2008) index, IP systems that do not provide patent rights to software inventions are not necessarily deficient or lower quality to the ones that do. This is because according to WIPO (2015) “In many countries, computer programs, whether in source or object code, are protected under copyright. The major advantage of copyright protection lies in its simplicity. Copyright protection does not depend on any formalities…”, “…international copyright protection is automatic - it begins as soon as a work is created. Also, a copyright owner enjoys a relatively long period of protection, which lasts, in general, for the life of the author plus 50 or, in certain countries, 70 years after the author's death…”. This suggests that while certain legal provisions (that comprise the indices in the literature) may not be present in a country, the legislative system of the country may in fact assign and protect IP rights with alternative legal provisions. Second, the availability of a high number of legal provisions in a country that are (potentially) unclearly specified, could lead to a dysfunctional IP law statute that IP owners may find difficult to navigate and operate in. In contrast, a country that has a low number of IP laws which are clear and useful may be preferred by owners compared to the system of a country that incorporates a high number of Law on the book which are however of questionable usefulness. This is because the characteristics of relevant laws determine the quality of Law on the book in a country. Measuring the quality of Law on the books in terms of the characteristics such as clarity and ease of use of law would therefore provide a more accurate approximation of the quality of these laws. These problems can lead to attributing a high or low quality classification to the Law on the books without due reflection on whether the number and types of laws accurately capture the quality of the regulatory framework.