ENTERTAINMENT LITIGATION: POPE BENEDICT, INTELLECTUAL PROPERTY RIGHTS AND COLDPLAY

“TRUTH IN CHARITY” ENCYCLICAL TOUTS NEW GLOBAL ECONOMIC STRUCTURE BASED ON SOCIAL AND ETHICAL RESPONSIBILITY

It’s been a while since I wrote a new post on this blog. I apologize for that. I thought I’d make my first post in some time to comment on Pope Benedict’s June 29, 2009 Encyclical Letter “Caritas in veritate” — Truth in Charity.

In his latest and third encyclical letter, Pope Benedict comments about the current global economic crisis and mentions certain intellectual property rights, the litigation of which constitutes a large part of my practice. The sentence in the Pope’s letter which has generated reaction in the intellectual property community is this: “On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.”

Here are my thoughts on the subject — from the perspective of a Catholic intellectual property lawyer and Coldplay fan.


POPE BENEDICT’S BROADER MESSAGE CONCERNING SOCIAL JUSTICE

The Pope’s June 29 encyclical sends a broader message concerning the current economic systems in place, those systems’ effect on human development and the need for change. (The Pope’s encyclical letter — the English version — is not the easiest read and his Holiness is certainly not at a loss for words.) In the section entitled, “Human Development in Our Time,” the Pope repeats a theme present in many Catholic publications — arguing for greater social justice while deriding that “[t]he world’s wealth is growing in absolute terms, but inequalities are on the increase.” Pope Benedict wrote:

“The scandal of glaring inequalities” continues. Corruption and illegality are unfortunately evident in the conduct of the economic and political class in rich countries, both old and new, as well as in poor ones. Among those who sometimes fail to respect the human rights of workers are large multinational companies as well as local producers. International aid has often been diverted from its proper ends, through irresponsible actions both within the chain of donors and within that of the beneficiaries. Similarly, in the context of immaterial or cultural causes of development and underdevelopment, we find these same patterns of responsibility reproduced. On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care. At the same time, in some poor countries, cultural models and social norms of behaviour persist which hinder the process of development.

So in one respect, the Pope’s latest encyclical continues the Church’s preaching that one’s life should be motivated by the greater good rather than for selfish purposes. The difference is the stray comment — the dicta — about intellectual property rights and the enforcement of those rights. And since a papal encyclical is a publication that Catholics around the world should take seriously, the Pope’s express statement on the enforcement of intellectual property rights is certainly thought-provoking to me.

THE INTERSECTION OF THE POPE’S ENCYCLICAL, INTELLECTUAL PROPERTY RIGHTS, INNOVATION AND COLDPLAY

The traditional reason provided for the strong protection of intellectual property rights is to provide an incentive for innovation. That’s historically been the rationale for protecting all IP — from patents to copyrights to trademarks. But is that really true? Is being “greedy” with your IP — as the Pope might put it– really what motivates innovation and creativity?

This past weekend I attended a concert of one of my favorite bands, Coldplay. Coldplay is undoubtedly one of the most successful bands around. They play to sold out venues worldwide and sell countless copies of their songs and albums. However, Coldplay is also one of the first artists to give away — literally — copies of their songs and albums to its fans. Most recently, Coldplay released an entire album, LeftRightLeftRightLeft, and gave it away on their website coldplay.com. Concert goers also received a free CD of that album (although most, like myself, probably already downloaded a copy).

Which leads me back to the Pope’s message — and his statement that “excessive zeal” and “rigid assertion” of intellectual property rights may do more harm than good. Coldplay’s generosity with their intellectual property does not seem to hurt their popularity — or their sales. That does not mean that Coldplay would not enforce their rights if their rights were being violated in a significant way. But in a world where intellectual property owners write cease and desist letters to prevent use of their property by anyone who has not obtained a license for that property, perhaps the Pope’s message and Coldplay’s example — that we shouldn’t be so “hyper-vigilant” about rights — is not so far fetched.

So the practical question at the end of the day is: Should we be devoting so many resources and energy to enforce IP rights for every potential violation — like against fan sites which do not profit from the use of such IP?

A lot can be learned from Pope Benedict. And Coldplay.