catholic thought and intellectual property: learning from the ethics of obligation

CATHOLIC THOUGHT AND INTELLECTUAL PROPERTY: LEARNING FROM THE ETHICS OFOBLIGATIONAuthor(s): Gabriel J. MichaelSource: Journal of Law and Religion, Vol. 25, No. 2 (2009-2010), pp. 415-451Published by: Journal of Law and Religion, Inc.Stable URL: http://www.jstor.org/stable/20789489 .

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CATHOLIC THOUGHT AND INTELLECTUAL PROPERTY:

LEARNING FROM THE ETHICS OF OBLIGATION

Gabriel J. Michael*

Introduction

The twelfth century canon lawyer Gratian once wrote "Feed the man dying of hunger, because if you have not fed him you have killed him."1 If Gratian were alive today, he might take a look at the current state of global health and say, "Succor the woman dying of disease, because if you have not helped her you have killed her." Both of these statements express an ethical obligation: if I have food, and someone else who is hungry does not, I am obligated to share my food. Likewise, if I have medicine, and someone else who is sick does not, I am

obligated to share my medicine.

Unfortunately, with regard to medicines and other essential

products, modem institutions of intellectual property often fail to enforce or even recognize such ethical obligations. In some ways, these

institutions uphold an even harsher attitude toward intellectual property than other types of property. With food, even if the hungry person receives no bread, he is still permitted to produce his own. With medicines, medical technologies, and other types of goods that are

protected by institutions of intellectual property, the law can and often does prevent the sick person from producing her own.

This article contends that the institution of intellectual property, particularly in the area of patent law and policy, fails to adequately articulate the ethical obligations of intellectual property holders. By drawing on the numerous resources regarding the ethical obligations of property holders present in the Catholic tradition, the article seeks to determine the obligations of intellectual property holders towards others, particularly in the context of ensuring widespread access to essential

* Doctoral student in the Department of Political Science at The George Washington University, Washington, DC. I thank Thomas Berg, Kevin Outterson, and Robyn Littman for

their comments on earlier versions of this work. I also owe special thanks to Lea Shaver, whose

guidance and encouragement were indispensable. 1. Gratian,D.86c.21.

415



416 JOURNAL OF LAW & RELIGION [Vol. XXV

medicines. The only way to ensure a just and ethically defensible institution of intellectual property is for policymakers, government officials, and those in the legal profession to consider seriously the ethical obligations of intellectual property holders, and to allow those

obligations to inform their decision making. In Part I, I explain why a distinctly religious ethical analysis of the

institution of intellectual property is necessary. Formulating good intellectual property policy and law is more than simply a matter of

empirical measurement, as Judge Richard Posner believes.2 Because the institution of intellectual property regulates access to life-saving

medicines and technologies, analysis of this institution cannot be solely quantitative; an effective analysis must examine the ethical features of the institution. While secular ethical analyses often focus on the

conflicting rights of intellectual property holders and others, a religious ethical analysis has the added benefit of focusing on ethical obligations rather than rights.

Part II provides an overview of Catholic thought about property, beginning with the origins of such thought in the ancient Hebrew

Scriptures, continuing with an examination of some early writings from various Church Fathers and Thomas Aquinas, and ending with a treatment of the seminal writings of modern Catholic social thought. Part III then seeks to understand if and how this thought about traditional forms of property applies to intellectual property, and to

specify concretely the ethical obligations of intellectual property holders.

Part IV considers the status of pharmaceutical patents on essential medicines as a test case for the application of these ethical obligations, and concludes that in many cases, a patent holder's exercise of the

exclusive rights created and supported by intellectual property law is

ethically unjustifiable. Furthermore, recourse to legal mechanisms such as compulsory licensing and parallel importation, which are often cast in a negative light by intellectual property holders and the governments of

developed nations, is in many cases ethically justified. The article concludes that in order to guarantee a just, ethically

defensible institution of intellectual property, policymakers and legal scholars must pay more attention to the ethical obligations of intellectual

property holders. Additionally, scholars of religious ethics should begin to critically examine the institution of intellectual property, which has

2. See Richard A. Posner, The Law and Economics of Intellectual Property, DAEDALUS,

Spring 2002, at 5,12.



415] CATHOLIC THOUGHT 417

heretofore received only limited scrutiny from religious communities.3

I. The Need for an Ethical Analysis of Intellectual Property

Much of the debate surrounding intellectual property policy and law is economic in nature. Scholars and policymakers argue over issues such as the optimal amount of intellectual property protection,4 what should constitute copyrightable or patentable subject matter,5 and

whether a patent system should grant all patentable subject matter the same protection.6 In many cases, the participants in these debates share similar public policy objectives: to promote innovation generally, to

expand the public's access to new and improved goods, or to ensure that there exists sufficient incentive for the research, development, and

bringing to market of new products. Viewed in the abstract, these issues may very well be, as Posner says, "entirely empirical,"7 and would no doubt be better left to economists than ethicists.

A. The Need for an Ethical Analysis

1. Social Utility is a Matter of Life and Death

However, intellectual property policy and law do not exist only in the abstract. On the contrary, one of the principal justifications for the institution of intellectual property is its concrete social utility.8 Intellectual property policy and law exist in a social context, where the

accessibility, affordability, and widespread diffusion of the goods regulated by such policy and law have tangible effects upon human

beings. Good intellectual property policy involves more than simply striking the optimal economic balance between static inefficiency and

3. But see GEOFF TANSEY, PATENTS AND QUAKER ACTION (Quaker United Nations Office & Quaker International Affairs Programme n.d.).

4. See, e.g., Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners, Eldred v. Aschcroft, 537 U.S. 186 (2003) (No. 01-618); Stan J. Liebowitz & Stephen Margolis, Seventeen Famous Economists Weight in on Copyright: The Role of Theory, Empirics, and Network Effects, 18 HARV. J.L. & TECH. 435 (2005).

5. See, e.g., Paul Klemperer, How Broad Should the Scope of Patent Protection Be?, 21

RAND J. Econ. 113 (1990); Richard Gilbert & Carl Shapiro, Optimal Patent Length & Breadth, 21 RAND J. econ. 106 (1990).

6. See, e.g., Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. Rev.

1575 (2003). 7. Posner, supra note 2, at 12.

8. See Christopher May & Susan K. Sell, Intellectual Property Rights: A

Critical History 7 (Lynne Rienner 2006).



JOURNAL OF LAW & RELIGION [Vol. XXV

dynamic efficiency;9 it ensures that human beings have access to the

products of innovation.10 Conversely, bad intellectual property policy might not only be economically inefficient, but could also result in human beings being denied access to the products of innovation. When these products are essential medicines, the results of bad policy can be

devastating. People may be unable to afford the appropriate medicine for their illness;11 a developing nation may be threatened with economic

penalties for allowing the legally permitted manufacture of a generic version of a medicine, and be forced to purchase the brand-name version, thus expending a larger portion of the state's limited resources;12 and treatments for certain diseases might never be

developed because current policy fails to provide appropriate economic incentives.13 In all of these examples, the lives of human beings are at stake. As political scientists Christopher May and Susan Sell have said, "It is not an exaggeration to state that intellectual property rights are a matter of life and death."14 Any institution where the lives of human

beings are at stake deserves ethical scrutiny, and the institution of intellectual property is not exempt.

2. Social Utility is Not the Only Justification for Intellectual Property

Another important reason why the institution of intellectual

property requires more than simply empirical economic analysis is because economics comprises only one of several justifications for the institution. Other justifications include appeals to John Locke's labor

theory of property, which argues that intellectual property is the natural reward for intellectual labor, and appeals to Hegel's philosophy of the self, in which intellectual property is viewed as inalienably connected with its creator.15 These justifications are not economic, quantitative, or

empirical in nature, but rather philosophical. When these justifications

9. These economic terms refer to the tradeoff that intellectual property makes between the

short-run and long run. In the short run, static efficiency is negatively affected when the

monopoly created by intellectual property rights allows a seller to price a good at a much higher level than he or she would be able to in a competitive market. In the long run, however, these

static inefficiencies may promote dynamic efficiency by providing incentives to create newer and

more efficient goods and services.

10. See may & sell, supra note 8, at 26 (referring to this as a "public goo[d] of diffusion"). 11. See infra Pt. IV.A.

12. See infra note 133. 13. See, e.g., Patrice Trouiller et al., Drug Development for Neglected Diseases: A Deficient

Market and a Public-Health Policy Failure, 359 lancet 2188 (2002). ("[0]f 1393 new chemical entities marketed between 1975 and 1999, only 16 were for tropical diseases and tuberculosis.").

14. May & Sell, supra note 8, at 1.

15. See id. at 20-21.




are invoked in debates about intellectual property policy and law, we need something other than an economic analysis to determine their merit. We need a mode of analysis capable of handling philosophical questions of individual and common good: we need an ethical analysis.

B. The Need for a Distinctly Religious Ethical Analysis

I do not claim that there have been no ethical analyses of intellectual property. On the contrary, over the past decade or so, there has been an outpouring of material that turns a critical, ethically inquisitive eye on the institution.16 This material has come from various academics, practitioners and lay individuals, as well as non

governmental organizations and intergovernmental bodies. Within academia, much of the material originates from legal scholars and economists; yet few religious ethicists have written about intellectual property. This is surprising, given the fervor with which religious ethicists debate issues in other modem fields, such as biotechnology. The few articles that have been written usually deal with the specific ethical implications of asserting intellectual property rights in genes, plant varieties, and other living things.17 While these works identify important ethical issues, they fail to critically analyze the institution of intellectual property as a whole. Rather than challenging the institution itself, they challenge its application to a specific area. Thus, a more

general religious ethical analysis of the institution of intellectual

property would fill a void in the scholarly literature, and this article is meant to contribute in that regard.

16. See, e.g., Laurence R. Heifer, Human Rights and Intellectual Property: Conflict or

Coexistence?, 5 minn. intell. prop. REV. 47 (2003); Richard T. De George, Intellectual

Property and Pharmaceutical Drugs: an Ethical Analysis, 15 bus. ethics Q. 549 (2005); Thomas

Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and REFORMS 222-61 (2d ed., Polity 2008); Kevin Outterson & Donald W. Light, Global Pharmaceutical Markets, in A COMPANION TO BlOETHICS 417 (Helga Kuhse & Peter Singer eds., 2d ed., Wiley-Blackwell 2009).

17. See, e.g., Arie P. Katz, Patentability of Living within Traditional Jewish Law: Is the

Harvard Mouse Kosher?, 21 AIPLA Q.J. 117 (1993); Puleng LenkaBula, The Social and Ethical Implications of Article 27 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) on African Communities, Biodiversity and Indigenous Knowledge, 122 J. THEOLOGY S. Afr. 36 (2005); Esther D. Reed, Property Rights, Genes, and Common Good, 34 J.

RELIGIOUS ETHICS 41 (2006). But see Daniel R. Finn, Creativity as a Problem for Moral

Theology: John Locke's 99 Percent Challenge to the Catholic Doctrine of Property, 21 HORIZONS

44 (2000); DAVID H. CAREY, THE SOCIAL MORTGAGE OF INTELLECTUAL PROPERTY (Action Inst. 2007); Thomas c. Berg, Intellectual Property and the Preferential Option for the Poor, 5 J. catholic SOC. thought 193 (2008); Barbara H. Andolsen, Essential Goods for AIDS Widows: Property, including Intellectual Property, in Catholic Social Teachings, 28 J. SOC'Y christian

Ethics 67 (2008).




1. Moving Beyond a Clash of Right-Holders

There is another, more compelling reason to undertake a distinctly religious ethical analysis of intellectual property. The discourse of the discussion set by secular ethical analyses is a discourse of rights; the

rights of intellectual property holders are weighed against the rights of others, e.g., human rights to education, participation in cultural life, and essential medicines.18 While important and fruitful, such an approach fails to account for the ethical obligations of intellectual property rights holders.

This failure is problematic, because a discourse of rights shifts our mode of thinking away from considerations of the common good to a more myopic, even selfish, mode. Furthermore, in a discourse of

competing rights, such as the one that exists in debates over the intersection of intellectual property rights and human rights, we find that

rights conflict. In order to move beyond a clash of rights-holders, we need to reexamine the obligations of those rights-holders.19 Because the ethical systems of many religions exhibit a much stronger focus on

obligations, responsibilities, and duties than a discourse of rights does, a

religious ethical analysis of intellectual property has the advantage of

being able to specify the obligations of intellectual property holders.20 Accordingly, this article attempts to understand the obligations of intellectual property holders by drawing upon the resources of one

specific religious tradition: Catholicism's long history of thought about property.

2. Why Catholic Thought?

Catholic thought is particularly well suited to this task because it contains a long history of thought about the ethical obligations of

18. See, e.g., Audrey R. Chapman, The Human Rights Implications of Intellectual Property Protection, 5 J. int'l econ. L. 861 (2002); Philippe Cullet, Human Rights and Intellectual Property Protection in the TRIPS Era, 29 hum. rts. Q. 403 (2007). See generally Laurence R.

Heifer, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 yale J. int'l L. 1, 45-51 (2004) (an overview of some of the early opposition to TRIPS from human rights advocates); Heifer, supra note 16 (suggesting that there are two major paradigms for the intersection of human rights and intellectual property rights). See also Sigrid Sterckx, Patents and Access to Drugs in Developing Countries: An Ethical Analysis, 4 Developing World Bioethics 58 (2004) (examining some of the philosophical justifications for patents, and suggesting that patent holders have obligations, but not developing the idea).

19. See Annette C. Baier, moral prejudices 246 (Harv. Univ. Press 1994). 20. See, e.g., Jason Morgan-Foster, Third Generation Rights: What Islamic Law Can Teach

the International Human Rights Movement, 8 yale hum. rts. & dev. L.J. 67, 68, 74 (2005); Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & religion 65

(1987).




property holders towards others, particularly the poor. As any convincing ethical discourse should, Catholic thought provides solid

reasoning for the ethical positions it espouses.21 Furthermore, the later

encyclicals of the twentieth century are typically written with a wide audience in mind, addressing Catholic, Protestant, and Orthodox alike, Christians and members of other faith traditions, all people as persons possessing human dignity and all nations and governments responsible for their people. For these reasons, Catholic ethical thought is decidedly not parochial and warrants the consideration of both religious and non

religious people.

II. An Overview of Catholic Thought About Property

Although the official Catholic teachings about property have evolved significantly over the course of nearly two millennia, these

teachings have not strayed far from several fundamental principles expressed by the earliest Church Fathers. The modem Catholic

understanding is that

[T]he first thing to be said about material goods is their common purpose and destiny to serve the needs of all. The absoluteness of private property is denied. In this life, private property must always be justified by how it relates to the destiny of the goods of creation to serve the needs of all.22

Contained in this understanding are three basic premises: first, because God is the ultimate creator and owner of all things, there is no absolute

right to property; second, as the ultimate creator, God has ordained

earthly goods to serve the needs of all people; and third, in view of this purpose, earthly goods must be put to their proper use. The institution of property is a convenient and effective way to ensure each person a

certain share of earthly goods, but it is not sacrosanct.23 What follows is a brief overview of the development of this

understanding of property, beginning with its roots in the ancient Jewish tradition, continuing with an examination of some of the Church Fathers and Thomas Aquinas, and ending with a look at modem Catholic social

21. See Bernard V. Brady, Essential Catholic Social Thought 17 (Orbis 2008) ("The Catholic moral tradition characteristically, however, does not base its moral positions on

arguments from the official position. This is an important point and a distinguishing feature of this tradition. Social Catholicism always answers the question why with forms of reasoned

statements."). 22. Charles E. Curran, Catholic Social Teaching 1891-present: A Historical,

Theological, and Ethical Analysis 181 (Georgetown Univ. Press 2002). 23. See Catechism of the Catholic Church, pt. 3, ? 2, ch. 2, art. 7, No. 1,

http://www.Vatican.va/archive/catechism/p3s2c2a7.htm#I (last visited Mar. 13,2010).




teaching.

A. Jewish Foundation

Catholic thought about property has its roots in the ancient Jewish tradition as recorded in the Hebrew Scriptures. This Jewish tradition exhibits a particular concern for the plight of marginalized groups, such as widows, orphans, and the poor.24 Many of the regulations concerning the poor and marginalized were phrased as obligations on the part of

property owners, instead of being put in terms of the rights of the poor.25 For example, owners of vineyards and olive groves were instructed to

pass through collecting their harvest only once, leaving whatever remained for the poor.26 Similarly, those reaping grain were to leave the corners of their fields untouched, so that others could gather enough food for subsistence.27 In certain years, tithes were retained from the collected harvests and set aside for the poor.28 In addition to these

regulations on the use of land and produce, the Hebrew Scriptures contain more general injunctions to practice charity and almsgiving; however, while charity and almsgiving are voluntary, the regulations on land use were mandatory, serving as a sort of social safety net for the very poor.29 By explicitly articulating the obligations of property holders, these regulations ensured at least minimal material support for the widow, the orphan, and the poor person. By comparison, modern intellectual property law is sorely lacking in specific provisions for

marginalized groups.

Apart from these specific regulations, it is quite clear that ancient Jewish tradition, at least as recorded in an idealized form, did not

recognize an absolute right to property.30 In particular, land could not be sold in perpetuity, because only God was its true owner.31 The jubilee regulations required the return of land that had been sold outside a tribe

24. See, e.g., Richard H. Hiers, Biblical Social Welfare Legislation: Protected Classes and

Provisions for Persons in Need, 17 J.L. & religion 49 (2002); Richard D. Patterson, The Widow, the Orphan, and the Poor in the Old Testament and the Extra-Biblical Literature, 130

BlBLIOTHECA sacra 223 (1973); F. Charles Fensham, Widow, Orphan and the Poor in Ancient Near Eastern Legal and Wisdom Literature, 21 J. near E. stud. 129 (1962). See generally Moshe Weinfeld, Social Justice in Ancient Israel and in the Ancient Near East (Fortress 1995).

25. See Cover, supra note 20.

26. Deut 24:19-21 (All Biblical citations are from the NRSV.). 27. Lev 23:22.

28. Deut 14:28-29.

29. See Hiers, supra note 24, at 66-82.

30. Id. at 66.

31. Lev 25:23.




to its original tribal holder every fifty years. The belief in God as the true owner of the land is found throughout the Hebrew Scriptures33 and had a formative influence on Christian and Catholic thought.

B. The Church Fathers

The earliest Catholic thinkers adopted the ancient Jewish belief in God as the true owner of land, but also viewed God as the true owner of all property, real or personal. Two prime examples of such thinkers are St. John Chrysostom, the fourth century archbishop of Constantinople, and Ambrose, the fourth century bishop of Milan. For example, in a

homily on one of Jesus' parables, Chrysostom explicitly expands God's

right of ownership beyond land. He states that "even though you have received an inheritance from your father, and have in this way come to possess everything you have, still everything belongs to God."34

Chrysostom's writings from two other homilies express the same view.

Again, he writes, "All things, in fact, are God's.... Your soul is not

yours, much less are your riches your own"35 and "wealth is not a

possession, it is not property, it is a loan for use.... Our goods here are

not our own."36 Ambrose, in his work On Naboth, exhibits a similar conviction: "You who bury your gold in the ground, you are the keeper and steward of your wealth, not its lord and master."37 This expansion of God's ownership from land to all property is critical for one of the fundamental Christian and Catholic attitudes towards property: stewardship.

1. Stewardship

The concept of stewardship is by no means a Christian innovation; on the contrary, many of the Christian resources for understanding stewardship come from the Hebrew Scriptures, and Judaism developed its own view of stewardship independent of the Christian tradition.38

32. See generally robert north, sociology of the biblical jubilee (Pontifical Biblical Inst. 1954); Jeffrey A. Fager, Land Tenure and the Biblical Jubilee (JSOT Press

1993). 33. 3B Jacob Milgrom, The Anchor Bible: Leviticus 23-27, at 2185 (Doubleday 2001). 34. John Chrysostom, Homily LXXVII on the Gospel of Matthew ? 3 (c. 400), reprinted in

Peter C. Phan, Social Thought 146 (Michael Glazier 1984). 35. John Chrysostom, Homily X on the First Letter to the Corinthians ? 3 (c. 400), reprinted

in social thought, supra note 34, at 151.

36. John Chrysostom, Homily XI on the First Letter to Timothy ? 2 (c. 400), reprinted in Social Thought, supra note 34, at 157.

37. Ambrose, On Naboth ? 58 (c. 375), reprinted in social thought, supra note 34, at 175. 38. See, e.g., David Ehrenfield & Philip J. Bentley, Judaism and the Practice of Stewardship,




For Christians, however, one of the primary illustrations of stewardship comes from a parable of Jesus, often called the parable of the talents.39 Both this parable and the concept of stewardship were the subject of much writing by early Catholic thinkers.

In the parable of the talents, a master who is about to go away on a

journey calls for his three slaves, and gives each of the slaves a different amount of money, with the assumption that the slaves will invest his money and earn him interest. When the master returns from his journey, he finds that two of the slaves have done just this, and he commends them. The third slave did not invest the money, instead choosing to bury it underground. When the slave returns the original amount without any interest, the master castigates him, takes away the money, and gives it to one of the other slaves, remarking somewhat ominously that "to all those who have, more will be given... but from those who have nothing, even what they have will be taken away."40 While the history of

interpretation for this passage is long and complex, its application to the idea of stewardship is fairly obvious:41 the master, God, has entrusted the slaves, God's subjects, with a measure of property. The slaves are

expected to put that property to good use. If they do, they will be rewarded; if they do not, they should expect to lose what was entrusted to them.

The concept of stewardship was understood to apply to more than

simply real and personal property quite early within the Catholic tradition. In a homily on the parable of the talents, Chrysostom remarks on its breadth of meaning: "This parable applies not to money only but also to speech, power, gifts, and every stewardship wherewith each is entrusted. It would suit rulers in the state also, for everyone is bound to make full use of what he has for the common good."42 Chrysostom's broad understanding of the parable is actually preserved in the modern

English usage of the word "talent" to mean "mental endowment" or

"natural ability"; such usage derives precisely from Jesus' parable of the talents.43 Thus, for Chrysostom, intellectual faculties are not exempt

34 Judaism 301 (1985). 39. See Matt 25:14-30; see also Luke 19:12-27 (the parable of the pounds, a similar but less

well-known text). 40. Matt 25:29.

41. See, e.g., John B. Carpenter, The Parable of the Talents in Missionary Perspective: A Call

for an Economic Spirituality, 25 MlSSIOLOGY: int'l rev. 165 (1997). But see Ben Chenoweth,

Identifying the Talents: Contextual Clues for the Interpretation of the Parable of the Talents, 56 A Tyndale Bull. 61 (2005) (arguing that this traditional interpretation of the parable is incorrect).

42. John Chrysostom, Homily LXXVII on the Gospel of Matthew ? 3 (c. 400), reprinted in Social Thought, supra note 34, at 145.

43. 17 The Oxford English Dictionary 580 (2d ed., Oxford Univ. Press 1989).




from the demands of stewardship. Rather, such intellectual faculties are to be considered gifts from God, and are to be put to good use.

Similarly, Chrysostom would undoubtedly hold that intellectual

property, which is the product of the intellectual faculties, ought also to be stewarded, and put to the best use.

2. The Universal Destination of Goods

Early Church Fathers such as Chrysostom and Ambrose of Milan insist that earthly goods, having been created by God, are destined for the common use and sustenance of all people. This belief would later come to be known as the universal destination of goods.44 In one of his homilies, Chrysostom considers the question, "What does the Apostle mean when he says that 6God provides us richly with all things for our use'?"45 He answers:

God gives us abundantly all things that are much more necessary than money, such as air, water, fire, sunshine and things of this kind_ All these things are available to all, equally and in common. Why is it that the greatest and most necessary things, things that sustain our life, have been created by God for common use, and the least and most sordid thing, namely, money, is not common?... [Because] if the necessities of life were not common, the rich, with their usual greediness, would perhaps take them away from the poor.46

Here, Chrysostom seems only to be thinking about naturally occurring goods. For his part, Ambrose makes it clear that he has in mind more than simply "air, water, fire, [and] sunshine."47 In his work on Christian ethics entitled On Duties, he writes:

[N]ature has poured forth all things for all for common use. God has ordered all things to be produced, so that there should be food in common to all, and that the earth should be a kind of common possession for all. Nature, therefore, has produced a common right for all, but greed has made it a right for a few. Here, too, we are told that the Stoics taught that all things that the earth produces have been created for the use of man, and that men have been bom

44. See CATECHISM OF THE CATHOLIC CHURCH, supra note 23, at Nos. 1, 6.

45. John Chrysostom, Homily II to the People of Antioch ? 6 (c. 400), reprinted in SOCIAL THOUGHT, supra note 34, at 138-39. Chrysostom is referring to 1 Timothy 6:17, traditionally attributed to the Apostle Paul, which in its entirety reads, "As for those who in the present age are

rich, command them not to be haughty, or to set their hopes on the uncertainty of riches, but rather on God who richly provides us with everything for our enjoyment."

46. Id. at 139.

47. Id.




for the sake of men, so that one may be of mutual advantage to

another.48

St. Augustine, the famed fourth century bishop of Hippo, also

presaged modern Catholicism's concept of the universal destination of

goods. Again exhibiting the belief that God is the ultimate creator and owner of all material things, he writes that God "has given to mankind certain good things suitable to this life ... light, speech, air to breath, water to drink, and whatever is suitable for the feeding and clothing of the body, for the care of the body and the adornment of the person."49 In a clear reference to the principles of stewardship enunciated in the

parable of the talents, Augustine continues by noting that "every mortal who uses aright such goods ... shall receive more abundant and better

goods ... whereas he who wrongly uses those earthly goods shall lose them."50 In another text, Augustine suggests that failing to share one's excess property with a person in need is essentially theft.51 Augustine explains the reasoning that leads him to this conclusion in a letter to

Macedonius:

[D]o we not prove that those who seem to rejoice in lawfully acquired gains, and do not know how to use them, are really in possession of other men's property? Certainly, what is lawfiilly possessed is not another's property, but "lawfully" means justly and justly means rightly. He who uses his wealth badly possesses it wrongfully, and wrongful possession means that it is another's

property.52

Finally, St. Basil the Great, a fourth century bishop who lived in Asia Minor, notes that the institution of private property is not

necessarily bad; rather, along with Augustine, he writes that it is the

improper use of property that makes it bad:

[T]he Lord's command does not teach that we have to reject and flee the goods as though they are bad, but that we should administer them. And the one who is condemned is condemned not because he possesses things, but because he makes a bad use

of what he possesses.53

48. Ambrose, On Duties ? 132 (c. 375), reprinted in SOCIAL THOUGHT, supra note 34, at

177.

49. Augustine, City of God bk. 19, ch. 13 (c. 425), reprinted in SOCIAL THOUGHT, supra note 34, at 235.

50. Id. at 235-36. 51. Augustine, Sermons (c. 400), reprinted in SOCIAL THOUGHT, supra note 34, at 226.

52. Augustine, Letter to Macedonius (c. 400), reprinted in SOCIAL THOUGHT, supra note 34, at 208.

53. Basil, The Short Rules ? 92 (c. 375), reprinted in SOCIAL THOUGHT, supra note 34, at



415] CATHOLIC THOUGHT All

In this sense, Basil takes a more moderate view of property than his contemporary Chrysostom. However, in another writing, Basil has strong words for those who d? make improper use of goods. Writing about the horror of starvation, he says, "The person who can cure such an infirmity and because of avarice refuses his medicine, can with reason be condemned as a murderer."54 This sentiment would make its way into the quotation from Gratian's Decretum that began this article, and should give pause to modem readers as we consider the ethical

obligations of intellectual property holders, particularly in the context of

pharmaceutical patents. In these early writings, we witness a strong emphasis on the notion

of common use, coupled with a much weaker consideration of property as a private, exclusive thing. In fact, Chrysostom's denunciations of wealth, evident above in his description of money as "sordid" and his reference to the "usual greediness" of the rich, have led him to be branded by some as a communist.55 Some nine centuries later, however, the prolific Doctor of the Church Thomas Aquinas would provide a robust justification for the institution of private property.

C. Thomas Aquinas

Thomas's magnum opus, Summa Theologica, was an exhaustive

scholastic work that treated practically all the major theological teachings of his day. It was divided into three parts, the second of which deals with ethics. Particularly interesting is question sixty-six, in which Thomas deals with the issues of theft and robbery. Thomas accepted the ancient traditional understanding that undergirds the concept of

stewardship, namely, that God is the owner of all things.56 He then considered the appropriateness of individual ownership, and offered a threefold justification:

First because every man is more careful to procure what is for himself alone than that which is common to many or to all: since each one would shirk the labor and leave to another that which concerns the community, as happens where there is a great number of servants. Secondly, because human affairs are conducted in more orderly fashion if each man is charged with taking care of

121.

54. Basil, Homily Delivered in Times of Famine and Drought ? 7 (c. 375), reprinted in Social Thought, supra note 34, at 119.

55. social thought, supra note 34, at 136. See supra note 46 and accompanying text.

56. See thomas aquinas, Summa Theologica, pt. 2.2, ? 66, art. 1 (c. 1270); see also

curran, supra note 22, at 175.




some particular thing himself, whereas there would be confusion if everyone had to look after any one thing indeterminately. Thirdly, because a more peaceful state is ensured to man if each one is contented with his own. Hence it is to be observed that quarrels arise more frequently where there is no division of the things possessed.57

In spite of Thomas's strong justification of the institution of

property, he does not reject the idea of the universal destination of

goods. He notes that, with respect to the use of property in distinction to its ownership, "man ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to others in their need."58

Although Thomas goes much further than any of the Church Fathers in defending the institution of property, he still does not

recognize an absolute right to property. In his discussion of theft and

robbery, Thomas asks whether stealing when one is in serious need is

permissible. He concludes that in light of the universal destination of

goods,

[I]f the need be so manifest and urgent, that it is evident that the present need must be remedied by whatever means be at hand (for instance when a person is in some imminent danger, and there is no other possible remedy), then it is lawful for a man to succor his own need by means of another's property, by taking it either openly or secretly: nor is this properly speaking theft or robbery.59

In fact, faced with extreme need, not only may I take another's property for my own benefit, but I may even take another's property for the benefit of a neighbor in need.60 Were Thomas considering the institution of intellectual property, he would likely view practices such as compulsory licensing of patents as necessary, justifiable, and desirable, given the numerous crises of global health. Still, Thomas's discussion of property in the Summa Theologica marks a major shift in Catholic thought about property. Whereas some of the early Church Fathers seemed almost hostile to the institution of property as a whole,

57. Aquinas, supra note 56, at art. 1. It is interesting to note that Thomas's justifications are

almost a medieval forerunner to the modern notion of the "tragedy of the commons," the idea that resources held in common will inevitably be damaged or destroyed by overuse of individuals because each person attends only to their own individual interests. For the classic exposition of

the tragedy of the commons, see Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243,

1244(1968). 58. THOMAS, supra note 56, at art. 2.

59. Id. at art. 7.

60. Id.




Thomas is much more receptive to it, noting that while it is not a matter of natural law, it is "an addition thereto devised by human reason."61

D. Modern Catholic Social Thought

Six centuries after Thomas, Pope Leo XIII's encyclical Rerum Novarum ushered in the era of modern Catholic social thought.62 In Rerum Novarum, written in 1891, Leo was responding to the tumultuous

changes in world economies throughout the nineteenth century, when nascent forms of modern capitalism and socialism contended with one another. The tone of the document is captured in both its Latin title, which means "on new things," and its English title, The Condition of Labor. Given the rising prominence of socialism, it is not surprising that Leo sets forth a strong defense for the right to private property.

What is surprising is the way in which he does so. While Leo does make reference to the key passages of Thomas's Summa Theologica, cited above, he also provides a different justification for the institution of property:

Here, again, we have another proof that private ownership is according to nature's law. For that which is required for the preservation of life and for life's well-being is produced in great abundance by the earth, but not until man has brought it into cultivation and lavished upon it his care and skill. Now, when man thus spends the industry of his mind and the strength of his body in procuring the fruits of nature by that act he makes his own that portion of nature's field which he cultivates?that portion on which he leaves, as it were, the impress of his own personality, and it cannot but be just that he should possess that portion as his own, and should have a right to keep it without molestation.63

Leo's reasoning here is immediately reminiscent of that passage in John Locke's Second Treatise of Government in which Locke lays out what has come to be known as the "labor theory of property":

God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being_Though the earth, and all inferior creatures, be common to all men, yet every man has a

property in his own person: this no body has any right to but

61. Id. at art. 2.

62. brady, supra note 21, at 60.

63. Pope Leo XIII, Rerum Novarum ? 9 (1891), reprinted in catholic social thought: The Documentary Heritage 17 (David J. O'Brien & Thomas A. Shannon eds., Orbis 1992).




himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby

makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men.64

In a sort of mirror image of the early Church Fathers, who strongly emphasized the common, universal aspect of goods but made only passing references to property as an individual phenomenon, Rerum Novarum firmly establishes an individual right to property.65 Leo

dutifully treats the more social aspect of property, making reference to Thomas's statement that the use of property must be in common, but adds that this distributive, social aspect of property "is a duty, not of

justice (except in extreme cases), but of Christian charity?a duty which is not enforced by human law."66 By adopting the Lockean labor theory

while also sublimating the concept of the universal destination of goods, Rerum Novarum marks a significant change in Catholic attitudes towards the institution of property.

Pope Pius XI's Quadragesimo Anno61 attempts to present a more balanced approach to the institution of property. In an attempt to clear up misunderstandings about Leo XIII's statements on property,68 the

encyclical reaffirms what it calls the "twofold aspect of ownership, which is individual or social accordingly as it regards individuals or concerns the common good."69 Pius wanted to clarify that the social character of property as established in the universal destination of goods is not merely one quality of property among many; it is, to use

Aristotle's terminology, the final cause of property. It is the purpose for which private property exists. Pius makes this clear in his exposition of what constitutes the just distribution of goods: "[T]he division of goods which is effected by private ownership is ordained by nature itself and

64. John Locke, Second Treatise of Government, ch. 5 ? 26-27 (c.B. MacPherson ed., C.B. MacPherson 1980) (1689).

65. See curran, supranotQ 22, at 177.

66. Leo XIII, supra note 63, at ? 3, reprinted in catholic social thought, supra note 63, at 23.

67. "On the fortieth year"; Quadragesimo Anno was promulgated in 1931, the fortieth

anniversary of Rerum Novarum.

68. Leo XIII's teachings on property, the encyclical notes, were causing some to "accuse the

supreme pontiff and the Church as upholding both then and now the wealthier classes against the

proletariat." Pope Pius XI, Quadragesimo Anno (1931), reprinted in catholic social

Thought, supra note 63, at 51.

69. Mat52.




has for its purpose that created things may minister to man's needs in

orderly and stable fashion."70 In the institution of property, therefore, the individual, private aspect cannot be considered apart from property's social purpose.

In contrast to these earlier documents, the Second Vatican Council's Gaudium et Spes11 more strongly emphasizes the social aspect as embodied in the universal destination of goods. Gaudium et Spes defines the universal destination of goods:

God intended the earth and all that it contains for the use of every human being and people. Thus, as all men follow justice and unite in charity, created good should abound for them on a reasonable basis. Whatever the forms of ownership may be, as adapted to the legitimate institutions of people according to diverse and changeable circumstances, attention must always be paid to the universal purpose for which created goods are meant. In using them, therefore, a man should regard his lawful possessions not

merely as his own but also as common property in the sense that

they should accrue to the benefit of not only himself but of others.72

Unlike Rerum Novarum, Gaudium et Spes does not suggest that there is any natural basis for the right to property,73 and the language used above to describe the universal destination of goods emphasizes the social

contingency of the institution of property. Finally, Pope John Paul II sums up the modem state of Catholic

social teaching on property quite nicely in his encyclical Sollicitudo rei socialist

It is necessary to state once more the characteristic principle of Christian social doctrine: the goods of this world are originally meant for all. The right to private property is valid and necessary, but it does not nullify the value of this principle. Private property, in fact, is under a "social mortgage," which means that it has an

intrinsically social function, based upon and justified precisely by the principle of the universal destination of goods.75

70. Id. at 55.

71. "Joy and hope." 72. Second Vatican Council, Gaudium et Spes ? 69 (1965), reprinted in CATHOLIC SOCIAL

THOUGHT, supra note 63, at 212-13.

73. Curran, supra note 22, at 180.

74. "Concern about social matters."

75. Pope John Paul II, Sollicitudo Rei Socialis ? 42 (1987), reprinted in CATHOLIC SOCIAL THOUGHT, supra note 63, at 426.




As for how all this history and doctrine relates to intellectual property, as far as John Paul II is concerned, any difference is negligible. In an address given to the Jubilee 2000 Debt Campaign, John Paul II noted that the Church "has consistently taught that there is a 'social mortgage' on all private property, a concept which today must also be applied to 'intellectual property' and to 'knowledge.'"76 Yet, the differences between the traditional kinds of property discussed in Catholic thought and intellectual property are not negligible. Intellectual property is a

very different kind of property, and the assumption without explanation that ideas such as stewardship and the universal destination of goods are

equally applicable to intellectual property is problematic.

III. Challenges of Intellectual Property to Catholic Thought About Property

Although intellectual property differs from other forms of property, the debate over whether ethical concepts such as stewardship or the universal destination of goods are still applicable cannot hinge on a

question of whether intellectual property is truly property. The institution of intellectual property is a legal construct. Property is not some Platonic form to which various instantiations either conform or fail to conform; therefore, intellectual property is property if the law defines and treats it so. Laws may create different kinds of property and property interests, and whether or not traditional historical justifications for the institution of property apply to new forms of property makes little practical difference.77 Thus, trying to conjure up new justifications for why stewardship and the universal destination of goods should also

apply to intellectual property is in some ways a misguided endeavor. The positions of the Catholic Church on property are positions taken on the institution of property as a whole, and need not necessarily undergo reexamination each time the law creates a new type of property or

property interest.

A. The Unique Ontological Constitution of Intellectual Property

Still, because intellectual property is so different from other forms of property, much Catholic thought about traditional property encounters

76. Pope John Paul II, Message of the Holy Father to the Group "Jubilee 2000 Debt Campaign," f 4 (1999), http://www.vatican.va/holy_father/john_paul_ii/speeches/1999/

september/documents/hfjp-ii_mes_23091999Jubilee-2000-debt-campaign_en.html (last visited Mar. 24,2010).

77. It would be informative, however, to consider traditional historical justifications for new

forms of property before those new forms are codified into law.




difficulties when we try to understand how it should apply to intellectual

property. These difficulties typically arise from the fact that intellectual

property has a very different ontological constitution than traditional forms of property. For example, in Catholic thought, justifications of the individual right to own property are often based on the assumption that the goods in question are, in economic language, exhaustible and rival. "Exhaustible" means that many physical goods are always in limited supply. "Rival" means that one person's use of a certain good

may prevent or diminish another person's use of that good.78 Many familiar forms of property are both exhaustible and rival; for example, there is a finite, limited supply of cars in the world, and a car is usually a rival good: if I am driving a car, you are prevented from driving the same car. Unless you happen to be going in the same direction as I am,

my use of the car impedes your use of it. The subjects of intellectual property differ dramatically from other

forms of property because they are neither exhaustible nor rival. They are not exhaustible, because applying the concept of supply to a

particular idea or arrangement of words is a category error. Nor is intellectual property rival, because your use of an idea or arrangement of

words does not prevent or diminish my use of them.79 Thus, when Thomas Aquinas considers "[w]hether it is lawful for a man to possess a

thing as his own,"80 much of his discussion is not applicable to modem forms of intellectual property such as patent and copyright without a

great leap of imagination. Thomas's arguments are understandable in the context of exhaustible and rival property such as land, farm animals, tools, and food, but make little sense when they are stretched to intellectual property, which neither requires the same sort of constant care or upkeep as these things, nor is rival or exhaustible.

On the other hand, Leo XIIFs treatment of the individual right to

property, reminiscent of Locke's labor theory of property, could seem to

apply equally to both traditional forms of property and intellectual

property. In any case, there is no question that both international law and the law of the United States take for granted an individual right to intellectual property. The issue is the failure of these institutions to articulate the obligations of the same rights holders. Catholic thought

78. Yochai Benkler, Intellectual Property and the Organization of Information Production, 22 INT'L REV. L. & ECON. 81, 83 n. 13 (2002).

79. Your use of an idea or arrangement of words may very well diminish my ability to economically exploit the same idea or arrangement of words, but it does not diminish my ability to utilize the idea or arrangement itself.

80. THOMAS, supra note 56, at art. 2.




offers ethical reasoning about the social aspects of traditional forms of

property. Interestingly, given intellectual property's unique social

contingency, some areas of Catholic ethical reasoning fit even better with intellectual property than with traditional forms of property.

B. Social Utility and Social Aspect

At least in the American tradition, the social utility of intellectual

property is a critical reason for its legitimacy. The U.S. Constitution

clearly predicates intellectual property protections upon the assumption that these protections exist to "promote the progress of science and useful arts"81 because the progress of such disciplines is considered a

general social good. This utilitarian approach is evident in the Supreme Court's historical thinking about copyright. Chief Justice Hughes noted, "The sole interest of the United States and the primary object in

conferring the monopoly lie in the general benefits derived by the public from the labors of authors."82 Justice Stevens similarly wrote, "The

monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved_ [Namely] to allow the public access to the products of their genius... ."83 As for patents, Chief Justice Burger explained:

[P]atent laws promote this progress by offering a right of exclusion for a limited period as an incentive to inventors_ The productive effort thereby fostered will have a positive effect on society through the introduction of new products and processes of

manufacture into the economy, and the emanations by way of increased employment and better lives for our citizens.84

Without the economic and utilitarian arguments for intellectual property, it would be more difficult to justify the institution. Thus, when the institution of intellectual property fails to deliver an expected amount of social utility, we have grounds to examine it critically.

This is essentially the same reasoning found in Catholic thought about the individual and social aspects of property. John Paul II uses the

metaphor of a social mortgage: property's individual aspect is not

denied, but must always remain contingent upon its social aspect, which is to ensure a just distribution of material goods. While secular views of

81. U.S. Const, art. I, ? 8, cl. 8.

82. Fox Film Corp. v. Doyal, 286 U.S. 123,127 (1932). 83. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,429 (1984). 84. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470,480 (1974).




traditional property do not adopt this approach, the secular American view of intellectual property does. The individual benefits of intellectual property are not denied, but the institution is predicated upon the assumption that there is a social benefit to be had.85 With regard to John Paul IPs metaphor of the social mortgage, traditional Catholic

thought about property fits quite well with the institution of intellectual

property.

C. The Universal Destination of Goods Reconsidered

While the general concept of the social mortgage applies to intellectual property, what about its specific application in the universal destination of goods? As it turns out, the ethical concept that the goods of the earth are ordained for the use of all people mns into some more serious challenges when applied to intellectual property.

Theologian and economist Daniel Finn has argued that the concept of the universal destination of goods relies primarily on the natural character of earthly goods.86 It makes sense to speak of goods such as

grain and grapes being destined for common use, since these are

originally things that occur naturally in the wild, and are to be considered gifts from God. But Finn believes that Locke's labor theory of property undermines the giftedness of material goods. Now more than ever, the value of material goods comes primarily as a result of human labor and ingenuity rather than the natural characteristics of the materials that comprise them.87 To merge legal scholar Yochai Benkler's terminology with Finn's example, a mobile telephone is an "information-embedded good."88 Its value consists primarily in the human creativity that allows the assembled materials to function so, rather than in the specific metals and chemicals used to build the device, whereas the value of a head of grain consists in the material nature of the

grain itself. To his credit, it cannot be said that John Paul II did not foresee this

challenge. Nine years before Finn's article, he noted the changing character of work and ownership:

85. See May & Sell, supra note 8, at 7.

86. Finn, supra note 17, at 51 -52.

87. Id. at 52 ("[T]he vast majority of the value of the wealth we enjoy in the modern world is not in any simple sense 'nature's bounty... placed by God at the disposal of all his children

indiscriminately.' Human intelligence, creativity, and hard work have created it."). 88. YocHAi Benkler, The Wealth of Networks: How Social Production

Transforms Markets and Freedom 311-12 (Yale Univ. Press 2006).




In our time, the role of human work is becoming increasingly important as the productive factor both of non-material and of

material wealth_

In our time, in particular, there exists another form of ownership which is becoming no less important than land: the possession of know-how, technology and skill_ Whereas at one time the decisive factor of production was the land, and later capital? understood as a total complex of the instruments of production? today the decisive factor is increasingly man himself, that is, his knowledge, especially his scientific knowledge, his capacity for interrelated and compact organization, as well as his ability to perceive the needs of others and to satisfy them.89

However, in Finn's view, neither John Paul II nor any other official

expositions of Catholic doctrine have offered compelling reasons why intellectual property ought to be subject to the universal destination of

goods.

Putting aside the question of whether specific, individual information-embedded goods are destined for the use of all people, we should consider the question of whether Finn's criticism of the universal destination of goods applies to intellectual property such as patents and

copyrights. On the surface, it seems so, because intellectual property's value is undeniably due to human intelligence and creativity, rather than any naturally occurring characteristics. However, this is a superficial answer for several reasons. Finn himself identifies the first reason:

Although there is a strong tendency in the modem world to view human creativity and effort in individualist terms, the insights of modem sociology and social psychology make clear the communal character not only of human action but even of human knowing and language_

Instead of this denial of obligations, a more adequate assessment would identify a long list of gifts?and attendant responsibilities? without which human creativity and hard work itself could not exist. It is helpful to recall some of these: personal character formation in our families of origin and elsewhere; our conceptual and practical knowledge of the world rooted in the history of the sciences, the humanities, the arts, and daily experience; a social system which provides the stability, structure, and institutional nurturance within which human creativity can occur; and even the

language upon which we all depend for understanding and

89. John Paul II, Centesimus Annus ?? 31-32 (1991); reprinted in CATHOLIC SOCIAL THOUGHT, supra note 63, at 462-63.




communication.

This is a general appeal to the fact that even human intelligence and

creativity cannot really be solely attributed to the individual. A second reason is that while Locke's labor theory of property may

very well undermine the universal destination of goods as it applies to

physical products built by individuals, this is rarely the case for intellectual property. While one person could conceivably build a house or plow a field by herself, intellectual property is almost always a matter of building upon the work of others. Robert Ostergard refers to this as the cumulative inventive process:

Locke's labor theory of property is problematic, however, when used to justify IP rights. In particular, the question of ownership in the cumulative inventive process poses a serious problem. For

example, technology that is developed by one person is often employed in new products without ownership privileges being granted to its creator. Similarly, literary works often build on the fruits of other efforts. Because their labor is embodied in the new product, are the prior inventors and writers entitled to partial ownership of the object? If past inventors used their labor to create the object, does their right to property diminish if others utilize the product?91

Likewise, Susan Sell and Christopher May criticize the assumption of individual labor and desert inherent in intellectual property.92 Finn's version of this phenomenon, often referred to as "on the shoulders of

giants,"93 is extremely general, but captures the essence of the argument: there is no such thing as a lone inventor or genius; every creator owes

something to those before and around him or her. Thus, those who would assert that intellectual property is exempt from the universal destination of goods because of its primarily human nature need to

respond both to the objection that intellectual property is usually cumulative in its origin, and also to the objection that even if the value of intellectual property is due to its human origins, those human origins themselves are subject to ethical considerations such as stewardship.

90. Finn, supra note 19, at 60-61.

91. Robert L. Ostergard, Jr., Intellectual Property: A Universal Human Right?, 21 HUM. RTS.

Q. 156,159(1999). 92. MAY & SELL, supra note 8, at 25 ("Any approach that is based on the (just) rewards to

individual endeavor in knowledge creation aims to deny or at least downplay the social context

and common heritage on which all new knowledge must be built.... From the basics of

language to the development of complex ideas, we need to learn much before we can innovate."). 93. BENKLER, supra note 88, at 37.




D. Stewardship Reconsidered

The ethical concept of stewardship fits quite well with the institution of intellectual property. As previously discussed, the Church Fathers clarified that not only property but also "talents," i.e. abilities and intellectual capacities, fall under the purview of stewardship.94 Thus, the capacity for labor and labor itself are not, as Locke asserts, unequivocally one's own. Rather, they are to be considered as

something entrusted to humans by God, and as Jesus is traditionally understood to have taught in the parable of the talents, put to good use. Finn therefore suggests that

[B]ecause human personhood and creativity are themselves gifts from God, persons do not "own" themselves in any absolute way.

Although persons and their hereditary "assets" should never be treated as simple resources for the community, wealth arising from human effort and creativity stands under requirements of justice, even though these must be somewhat differently construed than

obligations attendant to the ownership of natural resources. An

authentic sense of the gift-character of one's own creative abilities leads the Christian to recognize obligations to the common good in the exercise of those capacities.95 In some sense, then, it is unnecessary to create a large theoretical

chasm between the labor of one's body, e.g., in harvesting heads of

grain, and the labor of one's mind, e.g., in writing a book. While one

type of labor acts upon a material good, and the other acts in the realm of ideas, in the Catholic view laborers of both types are equally indebted to God for the very capacity to work in the first place. In spite of the

many differences between the products of bodily and intellectual labor, John Paul II points out that on a fundamental level, the forms of labor that produce these products are not very different.96 Thus, though the doctrine of the universal destination of goods does rely in part upon the natural material characteristics of those goods, the concepts of

stewardship of faculties and an understanding of the capacity to labor, labor itself, and the fruits of that labor, all as gifts of God, indicate that intellectual property and information-embedded goods are not exempt from the universal destination of goods.

94. See supra pp. 424-25.

95. Finn, supra note 17, at 56.

96. John Paul II, Laborem Exercens ? 27 (1981), reprinted in CATHOLIC SOCIAL THOUGHT, supra note 63, at 388 ("All work, whether manual or intellectual, is inevitably linked with toil.").




E. The Obligations of Intellectual Property Holders

The institution of intellectual property is fundamentally predicated upon its social utility.97 When that social utility is questionable, the institution itself becomes difficult to justify. As with all property in Catholic thought, intellectual property is under a secular version of the social mortgage. Intellectual property holders have a social and ethical

obligation, if not a legal one, to ensure that their property is being used with some view to its social purpose. This principle is recognized, for

example, in the Paris Convention, which permits states to grant compulsory licenses and even revoke patents "to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work."98 Similarly, the Doha Declaration recognizes that, at least in the context of public health, "[e]ach member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are

granted."99 The very nature of the institution of intellectual property imposes certain obligations upon intellectual property holders.

Additionally, the nature of intellectual activity and the products of that activity entail obligations. Stewardship is a broadly applicable principle. It is relevant to traditional property in the form of goods and chattels, as we see from the parable of the talents, but it is also relevant to intellectual skills and faculties, as the even the early Church Fathers indicated. There is no reason to think that intellectual faculties, and the

product of those faculties in the form of intellectual property, should not be stewarded. In fact, given the unique nature of intellectual property, and the fact that it often is the result of a cumulative inventive process, there is in some ways more of an obligation to be recognized than with traditional property.

The very nature of a patent consists primarily in the right to exclude others from producing the product or using the process in

question, but such exclusion cannot be ethically justified when it results in the loss of human life. If exercising the right to exclude others from

producing or using pharmaceutical products means that some people will suffer sickness and death from lack of access to or inability to

97. See supra pp. 434-35.

98. Paris Convention for the Protection of Industrial Property, art. 5(a), cl. 2-4, opened for

signature Mar. 20, 1883, 21 U.S.T. 1583, 828 U.N.T.S. 305. But see Patent Misuse Reform Act, 35 U.S.C. ? 271(d)(4) (2007) (which does not deny relief to patent holders for infringement even if they have "refused to license or use any rights to the patent").

99. Doha Declaration on the TRIPS Agreement and Public Health, ? 5(b), WT/MIN(01)DEC/2 (2001).




purchase those medicines, such a right must not be exercised. That the sickness and death happen slowly and may be intensified by other factors does not alter the fundamental fact that there is a causal link. Utilitarian justifications of intellectual property point to the general social value of progress promoted by patents, but it is absurd to protect such abstract social value at the cost of the concrete social value of human lives. When lives are at stake, intellectual property holders are

ethically obligated to share their property. In the case of pharmaceutical patents, this means taking steps such as ensuring that the price of

patented products is never prohibitive, establishing licensing agreements to allow the manufacture of generic versions at affordable prices, and

generally implementing systems to ensure that patent rights never become an obstacle to the diffusion of essential medicines.

Unfortunately, we cannot expect intellectual property holders to attend to their ethical obligations voluntarily.100 Economists like to

point out that incentives matter. If there is no incentive for intellectual property holders to heed the social aspect of the institution and ensure that their property serves some social purpose, we should hardly be

surprised when the social aspect of that institution is neglected. One solution is offered by government intervention, in the form of

compulsory licensing, parallel importation, and patent revocation. These admittedly blunt instruments enable governments to avoid the most egregious ethical failures of the institution of intellectual property, but they are not suitable for a comprehensive, systematic approach to

ensuring that intellectual property holders live up to their ethical

obligations. On the contrary, the widespread use of such mechanisms would lead to significant uncertainty on the part of investors and researchers about the value of intellectual property, possibly reducing innovation. What is lacking, and what is needed, is a willingness on the part of policymakers, government officials, and others to include

provisions in the institution of intellectual property that incentivize the

discharge of intellectual property holders' ethical obligations.

100. Although many pharmaceutical companies have established programs to provide certain

products at low or no cost to developing nations, this often comes about as a result of outside

pressure. See infra p. 443; Melody Petersen & Donald G. McNeil, Jr., Maker Yielding Patent in

Africa for AIDS Drug, N.Y. TIMES, Mar. 15, 2001, at Al. But see Sarah Boseley, Drug Giant

GlaxoSmithKline Pledges Cheap Medicine for World's Poor, GUARDIAN, Feb. 14, 2009, at 1, available at http://www.guardian.co.ulc/business/2009/feb/l 3/glaxo-smith-kline-cheap-medicine

(a recent, unprecedented, and pleasant counterexample to this trend).




IV. A Test Case: Pharmaceutical Patents

The umbrella term "intellectual property" encompasses a great number of legal rights, protections, and mechanisms, all with potentially different ethical implications. As a result, the selection of a test case to which we can apply some of the ethical concepts of Catholic social thought must be clearly defined and justified.

The particular case of pharmaceutical patents is attractive for several reasons. First, the importance of the debate surrounding the

merits of patents on essential medicines is undeniable. The WHO estimates that 1.7 million deaths were caused by tuberculosis in 2006.101 There were 247 million cases of malaria in 2006, resulting in nearly a million deaths.102 Worldwide, about thirty-three million people are

living with HIV, most of them in sub-Saharan Africa.103 Aside from these well-known instances, there are numerous neglected tropical diseases, such as Chagas disease and Dengue Fever. For some of these diseases, highly effective treatments are lacking; for others, effective treatments exist, but access is limited. High prices due to

pharmaceutical patents are not the only limiting factor in access,104 but they are often an important one, and cannot be overlooked.

Second, a great deal of intellectual property policy regarding patents is established at the level of global institutions such as the World Intellectual Property Organization and World Trade Organization. Identifying ethical deficiencies in the operation of these institutions is

more than simply an academic exercise; rather, it is a matter of

identifying a systematized injustice that affects millions of people. Third, focusing on patents allows us to analyze a broad category of

intellectual property, and draw more conclusions about the institution of intellectual property as a whole. This is important because, as

mentioned above, most of the existing scholarship by religious ethicists about intellectual property analyzes patents on genes, plant varieties, or

101. World Health Organization [WHO], Global Tuberculosis Control: Surveillance, Planning, Financing 1, WHO/HTM/TB/2008.393 (2008).

102. World Health Organization [WHO], World Malaria Report 2008, at vii, WHO/HTM/GMP/2008.1 (2008).

103. Joint United Nations Programme on HIV/AIDS [UNAIDS], Report on the Global HIV/AIDS Epidemic 2008, at 32, UNAIDS/08.25E/JC1510E (2008).

104. See, e.g., World Health Organization [WHO] et al., Sources and Prices of Selected Medicines and Diagnostics for People Living with HIV/AIDS (6th ed. 2005), available at http://whqlibdoc.who.int/publications/2005/9241593342_eng.pdf (noting that factors such as import duties, taxes, and the quality and quantity of distribution services and health facilities all play a role in determining access).




other living things. In the United States, pharmaceutical patents fall under the category of utility or process patents, rather than a sui generis form of patent such as plant patents. Thus, our reasoning about pharmaceutical patents may also apply to other utility patents on products essential to people's basic survival.

Although the role that patents, particularly given their formulation in the TRIPS agreement,106 can play in raising prices and thereby limiting access to medicines is well documented,107 the following three cases serve as typical examples.

A. Examples of Problematic Patents

1. An Example from the Past: Fluconazole

Fluconazole is an anti-fungal drug used in the treatment of cryptococcal meningitis, a form of meningitis that afflicts approximately ten percent of people with AIDS.108 Left untreated, cryptococcal

meningitis typically results in death in less than one month.109 Data from 2000 show that Pfizer was selling fluconazole at a price ranging from $6.20 per 200 mg dose in Thailand, to $11.84 for the same dose in Guatemala. In the same year, both Thai and Indian manufacturers were

producing a generic form of fluconazole at prices of $0.29 and $0.64 per 200 mg dose respectively.110

Effective treatment of cryptococcal meningitis requires an initial period of treatment, followed by a daily 200 mg dose of fluconazole for six to twelve months.111 Pfizer's prices thus resulted in annual costs of treatment for a single individual and this single disease in the thousands of dollars, far beyond the public means of countries such as Thailand or

105. See supra note 17, and accompanying text.

106. The Agreement on Trade Relate Aspects of Intellectual Property Rights (TRIPS), is a highly influential and controversial international agreement that applies to all members of the World Trade Organization (WTO). Among other things, it sets minimum global standards for the protection of various forms of intellectual property. See MAY & SELL, supra note 8, at 161-201.

107. See, e.g., Ellen 't Hoen, TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha, 3 CHI. J. INT'L L. 27 (2002); Frederick M. Abbott, The TRIPS agreement, Access to Medicines, and the WTO Doha Ministerial Conference, 5 J.

WORLD INTELL. PROP. 15 (2002); Germ?n Vel?squez & Pascale Boulet, Globalization and Access to Drugs: Perspectives on the WTO/TRIPS Agreement pt. I, WHO/DAP/98.9 (2d ed., 1999).

108. Carmen Perez-Casas et al., Access to Fluconazole in Less-developed Countries, 356 LANCET 2102, 2102 (2000).

109. Id.

110. Id.

111. Tihana Bicanic & Thomas S. Harrison, Cryptococcal Meningitis, 72 BRIT. MED. BULL.

110(2004).




Guatemala and the private means of most individuals living in those countries. On the other hand, the annual cost of treatment for an individual using the generic form could be as low as one or two hundred dollars?still a significant cost, but much more affordable. For a

country like Thailand, which possessed the industrial capacity and legal clout enabling it to manufacture generic forms of drugs, the generic version of fluconazole, unencumbered by monopoly-priced license fees, represented a twenty-fold reduction in annual treatment costs, freeing up the limited funds of a national health budget to be used elsewhere.112

For countries such as Kenya and South Africa, the situation was

quite different. Pfizer refused to grant these countries licenses

permitting domestic generic production of fluconazole, or parallel importation of generic versions from other countries.113 Eventually, under heavy pressure from activists, Pfizer began a program in 2001 that

supplied donated fluconazole to South Africa and some other African countries.114 In 2004, the U.S. patent for fluconazole expired, with the result that the drug can currently be purchased in the U.S. in small

quantities for as little as $0.39 per 200 mg dose.115

2. An Example from the Present: Antiretroviral Drugs

In 2000, providing one year of a first-line antiretroviral treatment to a single patient cost more than $7000.00, putting such treatment far

beyond the reach of low- and middle-income countries. Yet, it is low and middle-income countries that account for the majority of the world's

people living with HIV. Fortunately, the annual cost was reduced to less than $200.00 within five years.116 The reduction in cost was not due to a

large change in the price of raw materials, or great improvements in

manufacturing efficiency. Rather, the primary factor was the production of generic versions of drugs, versions that were unencumbered by monopoly-priced license fees imposed by patent protection.117 The

112. David Wilson et al., Global Trade and Access to Medicines: AIDS Treatments in

Thailand, 354 LANCET 1893 (1999). 113. See Perez-Casas et al., supra note 108, at 2102 (These events took place before the Doha

Ministerial Declaration, which emphasized the legality of compulsory licensing.). 114. Emelia Sithole, S. Africa Okays Pfizer AIDS Drug Distribution, REUTERS NEWS, Feb. 21,

2001.

115. Health Warehouse, Fluconazole 200mg Tablets (Generic Diflucan),

http://www.healthwarehouse.com/?uconazole-200mg-tablets-generic-o^flucan.html (last visited

Feb. 22,2010). 116. Kevin Outterson, Patent Buy-Outs for Global Disease Innovation for Low- and Middle

Income Countries, 32 AM. J.L. & MED. 159,168 (2006). 117. See Marleen Boelaert et al., Do Patents Prevent Access to Drugs for HIV in Developing

Countries?, 287 JAMA 840, 840 f 2 (2002).




result of this enormous reduction in cost is that millions of people infected with HIV now have access to relatively affordable treatment.

There are clouds on the horizon, however. First-line antiretroviral

therapy is facing drug resistance. The solution is to switch to newer, second-line treatments. However, the prices of second-line antiretroviral

drugs are much higher, and the availability of generic versions is very limited.118 Currently, only a fraction of antiretroviral treatment in low and middle-income countries uses second-line drugs, but as resistance

necessitates switching, the overall cost of treatment will balloon.119 Because national health budgets are always limited, a significant increase in the price of treatment necessarily means that fewer people

will be treated. Without significant price reductions, in a few years the world may actually be in a worse position with regard to HIV treatment than before.120

3. An Example for the Future: HPV Vaccines

Cervical cancer caused the deaths of over 250,000 women in 2005, ninety-five percent of whom lived in developing countries, and these

figures are expected to increase.121 Nearly all cases of cervical cancer are caused by human papillomavirus (HPV).122 Merck received FDA

approval for Gardasil, its HPV vaccine, in 2006.123 GlaxoSmithKline expects to receive regulatory approval for Cervarix, another HPV vaccine, in late 2009.124 Gardasil costs approximately $360.00 for a three-dose series.125 At the time of its release, Gardasil was "the most

expensive vaccine ever marketed."126 While these prices are reasonable in first-world countries such as

the U.S., they are simply not affordable for the developing countries that account for the vast majority of cases of cervical cancer. One paper

118. Outterson, supra note 116, at 169; Global: WHO Narrows Down Second-Line ARV

Options, plusnews 17, Feb. 7,2008. 119. plusnews, supra note 118, at 1(7. 120. See Outterson, supra note 116, at 169.

121. World Health Organization [WHO], Comprehensive Cervical Cancer Control 16, WP 480 (2006), available at http://www.who.int/reproductivehealth/publications/cancers/ 9241547006/en/ index.html.

122. See Id.

123. World Health Organization [WHO], Vaccinating Against Cervical Cancer, 85 bull. World Health Org. 89, f 6 (2007).

124. Ben Hirschler, Glaxo's Cervarix Vaccine Faces Further Delay, reuters news, June 30, 2008.

125. Peter Maybarduk & Sarah Rimmington, Compulsory Licenses: A Tool to Improve Global

Access to the HPV Vaccine?, 35 AM. J.L. & med. 323, 324 (2009). 126. J.L. Schwartz et al., Lessons from the Failure of Human Papillomavirus Vaccine State

Requirements, 82 clinical pharmacology & therapeutics 760, 760 (2007).




suggested that in order to be cost-effective for countries who are not members of the Organisation for Economic Co-operation and

Development (OECD), an affordable HPV vaccine must not exceed a wholesale price of $3.30.127 The high price of HPV vaccines, which are

targeted at first-world populations, places them far beyond the reach of the bulk of women who could benefit from them.128

B. An Ethical Analysis

In each of the three previous examples, we encountered a situation where the high price of a medicine excluded many of those who could benefit from it. Furthermore, in each example, the high prices were due to the intellectual property protection that allows a patent holder to exert a monopoly over the distribution of their product. Even this general monopoly is not necessarily problematic, but because the ethical

obligations of intellectual property holders are not enforceable and are not typically discharged voluntarily, a person's health and life may become contingent on his or her ability to pay.

Remember Gratian's statement: "Feed the man dying of hunger, because if you have not fed him you have killed him."129 In the modem

language of the encyclical Gaudium et Spes, the Vatican has expressed this sentiment somewhat less radically, saying that "men are obliged to come to the relief of the poor, and to do so not merely out of their superfluous goods."130 When the goods in question are food and water, this seems obvious enough. We do not want to condition a starving person's access to rice on her ability to pay; in fact, withholding food in such a situation would be ethically abhorrent. In a discussion regarding access to medicines before the plenary council of the WTO on TRIPS, a Vatican representative offered a similar statement:

To condition the international reaction to any other natural or human-made disaster (such as earthquakes, floods, accidents or

terrorism) on the victims being able to pay for the treatment and to contribute to the research and development of new assistance

devices, would rightly be considered a crime.131

127. See Outterson, supra note 116, at 169.

128. Vaccines, however, raise some special ethical issues, since their use is preventative rather than responsive, as in the case of both fluconazole and antiretroviral drugs.

129. Gratian, supra note 1.

130. Second Vatican Council, supra note 72, reprinted in CATHOLIC SOCIAL THOUGHT, supra note 63, at 213.

131. Diarmuid Martin, Intervention by His Excellency M?ns. Diarmuid Martin to the Plenary Council of the World Trade Organization on Trade-Related Aspects of Intellectual Property Rights 3 (2001), available at http://www.vatican.va/roman_curia/secretariat_state/documents/




Just as humans need food, clean water and shelter to survive, and to withhold any of these necessities is not only tragic but immoral, the same is true with medicine.

But the institution of intellectual property goes further than simply conditioning a person's health and life on the ability to pay in a way that would be completely unacceptable were it applied to physical, tangible property. The nature of a pharmaceutical patent consists primarily in the

right to exclude others from producing the product in question. By analogy, a patent, were it applied to physical goods, would not only condition a person's access to food based on the ability to pay, but would actually prevent that person from producing their own food. Gratian encourages those who have food to share it with those who are in need, and condemns those who have but do not share. But there

would be something especially perverse if someone not only had bread and did not share it, but did not even allow someone who needed food to make her own bread. This is the effect that patents on pharmaceutical products can have.

What is particularly troublesome is that developing nations and activists are not asking for handouts. Pharmaceutical patent holders are not necessarily being asked to produce thousands of doses of their medications and to deliver them at no cost to anyone who asks. Rather, pharmaceutical patent holders are being asked to stop asserting their

right to exclude others from producing generic versions of specific medications, and only in certain countries.132 In some cases, patent holders are not even being asked to do this much, and the problem lies instead in their efforts to erect legal and economic barriers before

developing nations who seek to exercise the flexibility offered to them under TRIPS.133

If we cannot rely on pharmaceutical patent holders to discharge their ethical obligations voluntarily, at a bare minimum, government officials, policymakers, and those in the legal profession ought to

strongly support and defend such practices as compulsory licensing and

rc_seg-st_doc_20010620_wto_en.html. 132. See supra p. 443.

133. See, e.g., Puhsadee Arunmas, Thailand Could Face Sanctions After Lobbying by Drug Firms, BANGKOK POST, Jan. 31, 2008 (reporting that the pharmaceutical industry trade group threatened to pressure the U.S. Trade Representative to designate Thailand as a Priority Foreign Country if it issued various compulsory licenses); see also Pharmaceutical Research and Manufacturers of America (PhRMA), Special 301 Submission 2008, at 21 available at

http://ustraderep.gov/assets/Trade_Sectors/IntellectuaLProperty/Special_301_Pub _2008/asset_upload_filel09_14495.pdf (in which the industry trade group suggests that Thailand be designated a Priority Foreign country, specifically citing "the Health Ministry's decision to issue compulsory licenses on six innovative medicines").




parallel importation. The invocation of these tools has been labeled theft

by various commentators134 and even a member of Congress.135 Critics

of compulsory licensing and parallel importation who frame the issue as one of foreign governments unjustly expropriating private intellectual

property would do well to keep in mind the words of Gaudium et Spes: "If a person is in extreme necessity, he has the right to take from the riches of others what he himself needs."136 Whether a given case of

compulsory licensing constitutes extreme necessity will of course vary based on circumstances,137 but it is simply irresponsible to label

compulsory licensing for purposes of dealing with public health crises as theft.

1. Economic Implications

In almost any critical discussion of the value of patents, someone raises the objection that the high profits garnered by certain patent holders, which are by definition economically inefficient because the

patent holder has a monopoly, are necessary to recoup the high cost of research, development, and regulatory approval that went into producing the patented item in the first place. In light of the enormous costs of

bringing new pharmaceuticals to market, few will question the

appropriateness of allowing a patent holder to price his or her product well above its marginal cost.

One immediate effect that will occur as developing countries rely more heavily on TRIPS flexibilities such as compulsory licensing and

parallel importation will be a reduction in revenue for the manufacturers of patented products; and a reduction in revenue means a reduction in the available funds not only for recoupment of the cost of previous research and development, but also for new research and development.

While the logic of this procession of events is impeccable, the extent to which revenues will actually decrease is questionable, because the revenue generated by the sale of patented products in developing countries represents only a fraction of global revenue. For example, Pharmaceutical Research and Manufacturers of America (PhRMA), the

134. See, e.g., Mary Anastasia O'Grady, Brazil Mulls Drug Patent Theft as an AIDS Antidote, Wall Street J., June 24,2005, at A13.

135. See Brazil to Steal American Pharmaceutical Patents, 151 CONG. REC. E1435 (2005), available at http://thomas.loc.gOv/cgi-bin/query/R7rl09:FLD001:E01436 (statement of Rep. Tom Feeney).

136. Second Vatican Council, supra note 72, reprinted in CATHOLIC SOCIAL THOUGHT, supra note 63, at 213.

137. One would never expect to see compulsory licensing of products such as Rogaine or Viagra.




trade group for pharmaceutical companies, reported $1.08 billion in sales to Africa in 2006, which is 0.4% of PhRMA members' total sales

during that year.138 Likewise, Mexico, Brazil, and all other South American, Central American, and Caribbean countries combined accounted for only 2.9% of worldwide sales.139

2. Potential Solutions

Although I am more interested in answering the ethical questions surrounding intellectual property, I do not want to understate the

importance of understanding and answering the economic questions. As economist and Noble laureate Gary Becker said with regard to the

pharmaceutical industry, "One does not want to kill this goose that is

laying golden eggs by ill-thought out and counterproductive 'reforms.'"140

The economic implications noted above are all related to the

problematic link between drag prices and research and development costs. Naturally, then, many proposals aimed at reducing the price of

pharmaceuticals seek to break this link. This link naturally implicates complex policy questions regarding the role of government funded research141 and the wisdom of allowing patents on the products of such research.142 Yet apart from increased government intervention, it is

important to note that there are currently several workable policies that can potentially result in product prices not having to reflect the expenses of research and development.143

One of the simplest steps is to encourage the creation of patent pools. Generally, a patent pool involves two or more patent holders agreeing to cross-license their patents or license them to a third party. Patent pools can decrease the costs of licensing for all the members

138. Pharmaceutical Research and Manufacturers of America, Pharmaceutical

industry profile 59 (2008), available at http://www.phrma.org/files/ 2008%20Profile.pdf. 139. Id.

140. Gary Becker, The Becker-Posner Blog: Pharmaceutical Patents, December 12, 2004,

http://www.becker-posner-blog.com/archives/2004/12/pharmaceutical.html (last visited Apr. 1,

2010). 141. See, e.g., Ammon J. Salter & Ben R. Martin, The Economic Benefits of Publicly Funded

Basic Research: A Critical Review, 30 RESEARCH POL'y 509 (2001). 142. See, e.g., David C. Mowery et al., The Growth of Patenting and Licensing by U.S.

Universities: An Assessment of the Effects of the Bayh-Dole Act of1980, 30 RESEARCH POL'y 99, 117-18(2001).

143. See AID AN HOLLIS & THOMAS POGGE, THE HEALTH IMPACT FUND: MAKING NEW

MEDICINES ACCESSIBLE TO ALL 97-108 (Incentives for Global Health 2008), available at http://www.yale.edu/macmillan/igh/Wf.html (an overview of various proposals to confront the

problems posed by patents).




involved in the pool, and can encourage research in areas that otherwise

might have been dampened by blocking patents. Substantive proposals for various patent pools exist,144 and GlaxoSmithKline recently announced that it would begin establishing patent pools for some

neglected tropical diseases.145 Patent buyouts constitute another option. Because of income

inequality in developing nations, manufacturers who seek to price patented pharmaceuticals to capture the most profit often end up pricing out the vast majority of people who could benefit from their product.146 A reduction in price, while increasing access to the product, will mean a reduction in profit, less possibility of recouping the cost of past research and development, and fewer funds to invest in future research and

development. However, by estimating the expected sales for a certain

pharmaceutical product, a government could simply buy the patent rights to a product at an attractive price.147 This guarantees the manufacturer enough profit to recoup its costs and invest in future research and development, and allows the government to offer the

product at a much lower price. Finally, prizes are a particularly promising alternative incentive

structure. In general, rather than awarding intellectual property rights, sponsors establish a well-specified goal, and allow various actors to

compete for a financial reward. In return for paying the reward, the

prize sponsor acquires a royalty-free right to the product whose

development it sought. Prize f?nds have been established and succeeded in achieving their goals for specific purposes,148 and there are currently substantive proposals for prize-like programs that would enable access to a wide range of essential medicines.149

Establishing strong incentives for promoting research and development of more effective medicines is a critically important policy goal, but there is simply no justification for withholding medication, either through exclusive rights or unreasonably high prices, in order to

144. See, e.g., Letter from Essential Inventions, Inc., to WHO, UNAIDS, and The Global Fund

(Jan. 17, 2005), available at http://www.essentialinventions.org/docs/eppa/coverl7jan05.pdf

(proposing the establishment of a patent pool for AIDS research and medicines). 145. See Boseley, supra note 100.

146. See Sean Flynn et al., An Economic Justification for Open Access to Essential Medicine

Patents in Developing Countries 13-22 (Univ. Calgary Dept. Econ., Working Paper 2009-01), available at http://ideas.repec.Org/p/clg/wpaper/2009-01 .html.

147. See Outterson, supra note 116, at 160-61.

148. See, e.g., X-Prize Foundation, Ansavi XPRIZE, http://space.xprize.org/ansari-x-prize (last visited Feb. 25, 2009) ($10 million prize for the first private organization to develop and demonstrate a reusable manned spacecraft that could be launched two times in two weeks).

149. See HOLLIS & POGGE, supra note 139.




support such incentives. Instead, government officials and policymakers should be actively exploring alternative methods by which the link between research and development costs and the final product price can be weakened.

Conclusion

To this day, the debate over access to medicines and intellectual property often devolves into a finger-pointing game, a match between

proponents of access and openness versus corporate, and often very

large and powerful, intellectual property holders. But by focusing on ethical obligations, rather than weighing human rights against intellectual property rights, I hope to have suggested a useful paradigm for cutting through some of the rhetoric surrounding this debate.

My analysis suggests that Catholic social thought has many unique resources to offer the ongoing disputes surrounding intellectual property policy. Even for people who are not committed to this religious tradition, much of the ethical reasoning discussed in this analysis is derived from human experience and consideration of general social

well-being rather than specific articles of faith. Particularly because of the unique social aspect of intellectual property policy, policymakers would do well to keep in mind ethical principles derived from social

thought. Such a limited analysis simply cannot do justice to Catholic social

thought as a whole, which contains an enormous amount of resources for

ethical thought on intellectual property, as well as economic policy in

general. Beyond the Catholic tradition, various Protestant, Orthodox, and other Christian traditions will have their own doctrines, teachings, and resources that will inform an ethical analysis of intellectual

property. Jewish and Muslim religious ethicists, as well as scholars from other religions, undoubtedly have critical contributions to make as well. Non-Western perspectives will be especially valuable in critically examining TRIPS, which has been called "an overwhelmingly Anglo Saxon legal discourse."150 On the whole, however, religious ethicists seem to be underestimating the value of their critique in this area. They should not: analyzing intellectual property will provide them with both an opportunity to expand and adapt traditional religious thought in an encounter with new ideas, and to potentially affect policy that has

tangible effects on the health and well-being of people all around the world.

150. MAY & SELL, supra note 8, at 19.




In my test case, I offered suggestions for how one class of intellectual property holders could discharge its ethical obligations: pharmaceutical companies could cease opposing the compulsory licensing and parallel importation of essential medicines. Failing that, the governments and administrations of developed countries such as the

U.S., Germany, the U.K., Switzerland, and France, which are home to

the largest pharmaceutical companies in the world, should firmly support the legal rights of other countries to invoke compulsory licensing provisions, thus recognizing the ethical obligations of intellectual property holders.

Policymakers, whenever they are debating provisions relating to intellectual property policy, must consider the fundamental social

contingency of intellectual property. The institution of intellectual

property is an institution that we have created and that we sustain. It exists for certain social purposes, and it must be structured with reference to those purposes. Likewise, government officials in a

position to influence an administration's actions on matters related to intellectual property should carefully consider the social nature of intellectual property. Tools such as compulsory licensing and parallel importation are rather blunt instruments for enforcing ethical

obligations. Likewise, drastic measures such as patent revocation are

likely to have significantly adverse side effects. Legal reforms of the institution of intellectual property that incorporate ethical obligations can offer a nuanced approach to ensuring that property rights do not

trump human rights. Those policymakers, government officials, and members of the

legal profession who are at all concerned with ensuring that the institution of intellectual property is structured ethically need to

seriously consider the implications of Catholic social thought and religious ethics in general. The institution of intellectual property, while fundamentally premised on an appeal to social benefits, largely fails to

specify how intellectual property holders ought to attend to their ethical

obligations. It does not incentivize ethical behavior. Principles of justice require that it be examined and modified accordingly.



catholic thought and intellectual property: learning from the ethics of obligation

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