01 November 2010

Critical Statement on IP by the Holy See

The Holy See (Sancta Sede) - not to be confused with the Vatican City over whose independent territory the Holy See is sovereign - is a subject of international law just as other states. Its possession of full legal personality in international law is shown by the fact that it maintains diplomatic relations with 178 states and that it is a member state in various intergovernmental international organizations, such as the United Nations and the WIPO.

At the meeting of the WIPO General Assemblies on 21 September 2010, H.E. Archbishop Silvano M. Tomasi, Permanent Representative of the Holy See to the United Nations, held a speech on the Holy See's view on intellectual property rights in the context of economic development of poor countries, which he also published on his blog Nunzio-UN.

In fact, this topic appears to be on the Holy See's agenda, since Pope Benedict XVI.'s third Encyclical Letter "Caritas in veritate" of 29 June 2009 already disused the impact of technological progress, economic development, and globalisation on the economical and social situation of poor countries (see also here and here). Under the headline "human development in our time" (chapter II, § 22) modern intellectual property rights are compared with a number of causes of worldwide wealth inequalities, such as corruption and illegality, exploitation of workers and the like: 
The world's wealth is growing in absolute terms, but inequalities are on the increase. In rich countries, new sectors of society are succumbing to poverty and new forms of poverty are emerging. In poorer areas some groups enjoy a sort of “superdevelopment” of a wasteful and consumerist kind which forms an unacceptable contrast with the ongoing situations of dehumanizing deprivation. [...] 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. At the same time, in some poor countries, cultural models and social norms of behaviour persist which hinder the process of development.
In his speech in front of WIPO, Monsignore Tomasi again emphasised the concerns of the Holy See (i.e. Pope Benedict XVI.) that an excessive IPR regime driven by rich countries would not lead to economic growth in poor countries, since theses countries may not have the scientific resources to create IP or the industrial resources to transform IP into competitive products and prosperity:
Economists recognize several mechanisms through which Intellectual Property Rights (IPRs) may stimulate economic development: these are interdependent so that a broad view of incentives associated with IPRs is appropriate. They devote much attention to this issue, but evidence to date is fragmented and somewhat contradictory, in part because many of the concepts involved have not yet been measured. A stronger system of protection could either enhance or limit economic growth. While strengthening IPRs has potential for enhancing growth and development in the proper circumstances, it might also raise difficult economic and social costs. Indeed, developing economies could experience net welfare losses in the short run because many of the costs of protection could emerge earlier than the dynamic benefits. This situation explains why it is often difficult to organize a convergence of interests in favor of reform of intellectual property in developing countries.

The adoption of stronger IPRs in developing countries is often defended by claims that this reform will attract significant new inflows of technology, a blossoming of local innovation and cultural industries, and a faster closing of the technology gap between developing and developed countries. It must be recognized, however, that improved IPRs by itself is highly unlikely to produce such benefits.

These few observations want to underline the conviction that the main goal of the international community in developing a fair regime of intellectual property rights should aim toward the good of all, the pursuit of more equitable international relations, especially with regard to poorer and more vulnerable people.
While the concerns expressed in the Encyclical and by Monsignore Tomasi appear comprehensible in view of the anticipated north-south patent conflict, e.g. with respect to patents for urgently needed medicines such as HIV drugs (see also here, here, and here), the situation of IP on technology may look different, since research and creating, protecting and commercially exploiting knowledge is a perfect tool for developing countries to become industrialised societies with reasonable standards of living, functioning education system and efficient health care. It is one of the pillars of modern patent system that monopolies are granted to protect economically poorer but innovative entities from the economic powerful that would otherwise be able to obstruct their economic development.

For that reason, Monsignore Tomasi is right to say that "the raison d’être of the protection system of intellectual property is the promotion [...] of inventive activity for the sake of the 'common good'". However, and that's how I understand the Hols See's statements, to foster the "common good" also by means of IPR, it is necessary that the (western) world better understands the potential of intellectual property for supporting social progress instead of focusing too much on IP as a tool to maximise profits.

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