© The Author (2009). Published by Oxford University Press. All rights reserved.
Editorial |
Caveat Caritas!
In his encyclical Caritas in Veritate (‘Care in Truth’), His Holiness the Pope makes a rare, and therefore particularly notable, foray into the IP debate when he states, in paragraph 22:
... Corruption and illegality are unfortunately evident in the conduct of the economic and political class in rich countries, both old and new, as well as in poor ones. Among those who sometimes fail to respect the human rights of workers are large multinational companies as well as local producers. International aid has often been diverted from its proper ends, through irresponsible actions both within the chain of donors and within that of the beneficiaries. Similarly, in the context of immaterial or cultural causes of development and underdevelopment, we find these same patterns of responsibility reproduced. On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.Given the influential nature of the Pope's role as a religious leader and a participant in the arena of moral discussion, both the content of this statement and the manner of its delivery deserve attention.
First, we see that the ‘excessive zeal’ that leads to the ‘unduly rigid’ assertion of IP rights is displayed by ‘rich countries’. At this level of generality, the Pope's words reflect subjective sentiment rather than anything of substance. IP rights are owned and enforced by people and businesses, not by countries, and it is not in any event the knowledge which is protected but certain specified and highly limited rights to use it commercially. Nor is it merely the rich countries but those which aspire to be so which now constitute the most avid applicants for IP rights as a means of protecting their creative and cultural interests, thereby helping to feed and employ their teeming masses: China and India—now voracious and enthusiastic users of the IP system—between them constitute more than one-third of the world's population.
Secondly, the emotive citation of health care as the poster child of IP abuse suggests that it is somehow the fault of IP that levels of health care have been neglected or subject to irresponsible conduct. Post-Doha, and with compulsory licence provisions enshrined in patent law, it is notable that pharmaceutical output in developing countries is strongly biased towards the manufacture of generic products for profitable sale in the rich world, to the detriment of output of the non-patented (or out-of-patent) drugs that make up some 90 per cent of the World Health Organization's must-have list.
Thirdly, the mention of IP rights follows the passage dealing with ‘Corruption and illegality’, rather creating the impression that IP enforcement is a subspecies of the evil to which the encyclical refers.
Earlier in paragraph 22, the Pope wisely urges his readers that it is necessary
... to liberate ourselves from ideologies, which often oversimplify reality in artificial ways, and ... to examine objectively the full human dimension of the problems.In this light, while it would be unrealistic to expect a full, balanced thesis on the positive and negative aspects of each species of IP right, it is sad to report that even on a generalized level there appears to be no warning or condemnation of the sort of activities that the enforcement of IP rights seeks to address. The words ‘counterfeit’ and ‘piracy’ are not mentioned. In the context of health care, there is no word of the poor in Africa who, in reliance on brand names or on prescription remedies, are stripped of their earnings and their well-being through the purchase of fake medicinal products or adulterated versions of genuine goods. While the encyclical does not operate at the playground debate level of ‘medicines cure but patents kill’, its obvious and genuine expressions of compassion offer no hope of redemption and recovery through the utilization of the IP systems.
So what conclusion can we draw from this curious episode? I think it is this: the Pope's interest in IP, having been awakened, should be welcomed, as indeed is his genuinely well-meaning sentiment. But it is for us as members of the IP community to convince him that IP can be put to great and beneficial ends and that it is through the facility of powerful enforcement that it can best achieve those ends.
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