IPR enforcement is a subset of IPR protection. The topic doesn’t say ‘legal protection,’ just protection, so expanding judicial enforcement is topical.

While each study makes important contributions in assessing the strength of IPR protection in countries, several conceptual and measurement issues are raised. The first conceptual issue is which IPR laws must be examined to gauge protection. Rapp and Rozek's measure assumes patent laws are ipso facto IPR laws. However, services increasingly are accounting for larger portions of economic growth. The value of a name or identification therefore has significant economic impact. Particularly in western countries, the economic contributions of copyrighted software production, entertainment products, and publishing are significant. To discount these two forms of IP protection would be to underestimate their economic impact. Similarly, it has been argued elsewhere (Ostergard 1999; Hettinger 1989) that nations do not treat all IP equally. Some forms of IP are more important to nations' economies than others. Using patents as a proxy for all IPR may overlook this issue. While Seyoum measures the strength of these laws individually, Sherwood's measure blends five different forms of IPR laws into the measure. As I noted earlier, the combining of various laws into one conceptual measure of IPR protection may present some theoretical and methodological difficulty.

A second conceptual issue relates to the enforcement of the laws. Rapp and Rozek and Seyoum do not include a component for enforcement in their study, though Rapp and Rozek recognize the issue (1990a, 7). The logic behind this proposition is intuitively simple. Nations may have in place the institutional structures and financial resources to enforce these laws, but others that do not have these structures and resources may not be able to enforce the laws adequately. Sherwood too recognizes this issue by including an enforceability component in his measure, but it does not significantly address the behavior of the governing regime in enforcing the intellectual property laws. The enforcement component Sherwood uses reflects an assessment of the potential to enforce IPR laws and not an assessment of the regime's actual performance.

From a measurement perspective, all three researchers assign scores based on the laws in force at the time they coded their data. Changes and amendments to the laws that may have occurred during any specific time period are not taken into account. The temporal element becomes critical particularly when using such measures to gauge the effect of IPR on foreign direct investment, technology levels and industry and economic growth. The missing temporal element means that their measure will not capture the impact of changes to these laws.

Another measurement concern is the replicability of these measures. For instance, Rapp and Rozek do not explain what constitutes the difference between a score of two and a score of three. What is the difference between "inadequate" laws and "seriously flawed" laws or the difference between "generally good laws" and laws that are "fully consistent" with the minimum standards? Without clearer criteria, an element of subjectivity is introduced, which casts doubt on the measurement's validity and reproducibility. In Seyoum's study, it is unclear as to how the raw data were reduced to a 0-3 scale. Similarly, because Sherwood's study is based preponderantly on the author's expertise, the ability to replicate the results without that vast experience is limited. Moreover, because the procedures use on-site interviews in the country, the practicality of duplicating these measures across time and across countries is limited as well.

A second concern with Sherwood's procedures is that because they are largely based on his experience, they may be more subjective than is desirable. For instance, when judging how many points to subtract for judicial independence, no set rules exist for what does constitute judicial independence. What criteria are used to subtract 5 points versus 6 points? We cannot be certain about distinctions given that the assessment is grounded in personal perception. Moreover, there seems to be some incongruity between the total points assigned to the major components and the total points that can be subtracted in the sub-categories. For instance, the enforceability component itself is worth 25 points, but the sub-category points that can be subtracted total 55 points. Is it possible that countries could have a negative score for enforceability? In theory, it is a possible scenario.

THE CONCEPT OF INTELLECTUAL PROPERTY RIGHTS PROTECTION

The measurement of IPR must incorporate both a statute component and an enforcement component. Roughly categorized, nations' laws can range from having no laws to having the strongest laws, and enforcement practices can range from having no enforcement of the laws to having strong enforcement of the laws. As Sherwood (1997) also notes, a nation can have strong laws or weak laws, but unless those laws are enforced, they are virtually non-existent in terms of the protection afforded IP owners and investors.

Law Measurement

In order to measure the strength of IPR laws, two issues must be addressed: what IPR laws and by what standards? I have settled for using just patents, copyrights and trademarks because the bulk of IP is protected under these laws (Benko 1987) and the information on cross-national patent, copyright, and trademark laws are more readily available than other types of IP laws. Following the practice of the other three studies, this study is based on the minimum criteria for IPR laws established by the US Chamber of Commerce. Using these criteria, separate code sheets for patent, copyright and trademark laws were created to conduct a content analysis of countries' IP laws.3 A number of legal sources were used to complete codesheets for each country in this study. All sources used pertained to IP statutes only, without reference to prior judicial review, trial histories or customs. The laws for seventy-six nations were coded twice with different coders utilizing the same code sheets.4 A comparison of the two codings showed intercoder agreement to be high; all inter-coder agreement scores were .90 or higher. This score reflects a 90% or higher agreement between coders on all items coded, which also indicates that these code sheets were constructed such that coding replication could be reasonably achieved. The laws for each nation were coded for three time intervals, 1988, 1991 and 1994. Three year intervals were used because the laws were not expected to change much on an annual basis. The time period was chosen because of the temporal limits of the enforcement component.