Open Access given Papal Blessing?

In his latest encyclical letter Pope Benedict XVI argues that rich countries are asserting their intellectual property with "excessive zeal", especially in the field of health care — a statement that has led some to conclude that the Pope has been converted to the Open Access (OA) cause. Whether or not this is the case, is it not perhaps time for the Vatican to reassess the way in which it asserts its own intellectual property (IP)?

Could the Open Access movement have a new convert? On 7^th July, in his third encyclical letter since taking office in 2005, Pope Benedict XVI says that over-enthusiastic exploitation of intellectual property by rich countries is posing problems for developing countries.

Caritas in Veritate (Charity in Truth) is the first of the current Pope's letters to focus on social issues, rather than spiritual matters. And significantly, it was released on the eve of the recent G8 meeting of world leaders at L'Aquila, Italy.

Reminding us that blind pursuit of profit and economic mismanagement has "wreaked havoc" on the global economy, the letter also calls for a reform of the United Nations — with the aim of arriving "at a political, juridical and economic order which can increase and give direction to international cooperation for the development of all peoples in solidarity."

The reference to intellectual property comes in Chapter 2, Paragraph 22, where the Pope says that one of the current impediments to development is the tendency for rich countries to show, "excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care."

Doubtless uppermost in the Pope's mind is an awareness that large Western-based pharmaceutical companies have shown themselves quite prepared to assert their patents aggressively, even when doing so deprives poor people of drugs and treatments that those in the West are able to take for granted.

Knowledge economy

But his point was surely broader than that, and undoubtedly reflects the now widespread concern that in the so-called "knowledge economy" more and more of the raw material driving economic development — information and know-how — tends to be appropriated by the West, which then imposes legal and financial restrictions on its use by means of such things as patents, copyright, trademarks etc.

This appropriation is possible, argue critics, because of the determined way in which the West has set about creating an increasingly maximalist global intellectual property system, which it then forces on the rest of the world through international trade agreements like the General Agreement on Tariffs and Trade (GATT). In particular, The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) — an international agreement administered by the World Trade Organisation (WTO), and negotiated at the end of the Uruguay Round of GATT in 1994 — sets minimum standards for many forms of IP regulation.

Importantly, TRIPS ties copyright and patent policy to a country's other trade. So, as cyber activist Cory Doctorow pointed out to me in 2006, "Failure to accede to the terms of TRIPS, for instance, could mean that a member state's Soya bean and steel exports are limited."

The consequences of this process have become increasingly apparent: Western companies are able to maximise their profits, regardless of the impact on poorer countries, which themselves generally have little or no IP but have to sign up to agreements like TRIPS if they want to be part of the global economy.

Western corporations that own intellectual property argue (with some justification) that if we want to ensure that new knowledge and know-how is created innovators must be incentivised. And the best way of doing this, they add, is for society to provide them with a time-limited monopoly in the exploitation of any newly-created know-how (e.g. by means of a patent).

Locked out

Critics respond by pointing out that most IP ends up in the hands of a few multinational companies, who then use the monopoly it provides to generate disproportionately high profits for private shareholders — by, for instance, significantly overpricing patented products. Since developing countries are unable to afford these prices their citizens are locked out of the benefits.

The Pope has therefore highlighted the social and financial consequences of the current intellectual property system, which unfairly excludes poorer nations from new knowledge and techniques. This not only leaves those countries at a continuing economic disadvantage but, when they are priced out of the latest medical treatments and drugs, deprives them of the ability to improve, or even preserve, the lives of their citizens.

Likewise, poorer nations are frequently denied the benefits of biotechnology, and new methods and techniques to improve agricultural productivity, and thus the ability to provide their people with food security (i.e. the wherewithal to feed them adequately) — a point made to me in 2006 by Biological Open Source advocate Richard Jefferson.

Moreover, the effects of today's IP system are more insidious than they at first appear. Consider, for instance, that while most research is funded by governments, who expect no direct financial return on their investment, this publicly-funded research is nevertheless appropriated by for-profit publishers — who sell it back to the research community in the form of journal subscriptions.

This is an issue that the Open Access movement has been trying to draw the world's attention to for fifteen years now, and is a direct consequence of the fact that when scientists publish their papers in scholarly journals they are told that — as a condition of publication — they must assign copyright to the publisher.

As a result, large Western-based companies like Elsevier, Wiley-Blackwell and Springer acquire this publicly-funded information, and then make huge profits out of it by charging very high subscriptions for scholarly journals — even though in today's online environment most access now takes place electronically, so distribution costs are minimal.

Indeed, journal subscriptions are so high that even the world's richest universities are now struggling to afford all the journals they need to undertake new research. (Bear in mind that most breakthrough research in the sciences comes at the end point of a prolonged iterative process. This means that scientific progress depends upon researchers knowing what research has already been done, and thus having access to all relevant published papers).

But if one considers that an annual subscription to a single journal (e.g. Elsevier's Brain Research) can cost as much as $22,000, and there are today some 24,000 scholarly journals, it is not surprising that scholarly communication is in the grip of a debilitating serials crisis.

For developing nations this means being locked out of much current medical research, leaving local scientists struggling to undertake effective research themselves, and local doctors unable to provide adequate medical treatment for their patients.

Explaining the problem to me last year, OA advocate Leslie Chan pointed out that while researchers at his institution — the University of Toronto — have access to between 2,000 and 3,000 medical journals, an African research institutions like the University of Nairobi School of Medicine will likely have access "to perhaps 30 to 40 medical journals."

In short, today's IP system means that private companies are able to use copyright to capture publicly-funded research, and then restrict access to it in order to maximise their profits. This has led to increasing financial difficulties for research institutions in the West, and near total exclusion from global research efforts for poorer nations.

It was growing awareness of the access problems this gives rise to that led to the creation of the OA movement — which advocates for all publicly-funded research to be made freely available on the Web.

Cycle of deprivation

Was the Pope calling for Open Access in his encyclical letter? Since he didn't mention it specifically we cannot say. Indeed, we don't know that he is even aware of the OA movement.

But the problem that the OA movement seeks to address is one component of the larger problem created by today's IP system, and which the Pope highlighted in his encyclical letter as being an obstacle to, "a political, juridical and economic order" focused on "international cooperation for the development of all peoples in solidarity."

"The point is clear," says Oldenburg-based OA advocate Eberhard Hilf. "OA helps researchers in poorer countries access vital medical information, and provides them with the dignity of being able to undertake their own research, and on an equal footing with scientists in developed countries. And that is both morally and economically good for everyone."

But the cycle of deprivation that today's IP system creates for developing nations does not end there. As Chan pointed out to me, today only 10% of R&D money is spent on diseases that mainly affect the 90% of people who live in the developing world, whereas 90% of the world's R&D money is spent on the 10% of diseases that primarily affect people in the West — a phenomenon Chan calls the 90/10 gap.

This means, for instance, that diseases like malaria and African trypanosomiasis, which primarily affect the developing world, remain neglected diseases. And the reason for this is quite simple: there is little incentive for multinational pharmaceutical companies to develop drugs for patient groups who are unable to pay the high prices these companies expect to be able to charge for patented drugs.

And if they nevertheless do develop drugs for a neglected disease, pharmaceutical companies know that governments in developing nations are now so desperate that they will likely sanction the production of cheap generic versions locally, by means of compulsory licensing — as happened in 2001 when Indian pharmaceutical company Cipla began to produce generic antiretrovirals (AVRs) to treat HIV AIDS.

In short, developing-world diseases offer too little financial return for pharmaceutical companies to attract the attention they deserve. And it is the intellectual property system that provides the framework from which the consequent inequity arises. After all, intellectual property treats non-rival resources (e.g. information and knowledge) as if they were depletable. This creates artificial scarcity — scarcity where it need not exist. What this means in practice is that potential profits for Western companies are prioritised over the basic human needs of people living in poorer nations — e.g. health, food security, and life itself.

For similar reasons, Western journals tend to have little interest in publishing research undertaken in poorer nations (which are likely to be focused on neglected diseases and other developing world concerns), preferring instead to publish research into diseases that affect rich nations — e.g. obesity and cancer; research that will invariably have been done in the West.

Since they cannot afford access to research published in Western journals, and so struggle to do cutting-edge research themselves, researchers in poorer nations are unlikely to have their papers published in prestigious Western journals. This makes it difficult for them to advance their careers, so many talented scientists end up migrating to the West. This in turn creates a brain drain that further exacerbates the problems faced by developing nations.

Indeed, so discriminatory are the effects of today's global intellectual property system that Western companies are even able to capture, and profit from, cultural products and knowledge originating in the developing world — so-called indigenous knowledge. So, for instance, they can appropriate traditional symbols and designs, create derivative arts and crafts, copyright and distribute traditional songs and stories, and patent traditional uses of medicinal plants — a practice known as biopiracy.

As a consequence, cultural products, traditional know-how, and even scientific talent tends to flow to the wealthier parts of the world, draining the developing world of unique locally-developed knowledge and resources, while simultaneously depriving it of life-preserving treatments, drugs and scientific techniques developed in the West.

In response to the larger problem created by the intellectual property system a growing number of other "open" and "free" movements have developed, including the Biological Open Source movement, the Open Source and Free software movements, the Free Culture movement, the Open Data movement, and Creative Commons — to name just few.

Leading by example?

Needless to say, many OA advocates welcomed the Pope's intervention in the debate about intellectual property. But is it enough simply to name the problem? Should the Vatican not also be leading by example? Should it not, for instance, give up some of its accumulated wealth to help tackle the poverty gap? And should it not re-think its own attitude to intellectual property?

After all, the Vatican has substantial wealth: Its revenues in 2007, for instance, were $371.97 million. It also owns a great deal of property, and considerable treasure — as Italian writer Avro Manhattan pointed out in his 1983 book The Vatican Billions.

Unsurprisingly, over the years the Vatican has been exhorted to sell its treasurers to help feed the poor on a number of occasions, most recently this March when Spain's Alberto Juesas Escudero persuaded 40,000 people to sign a Facebook petition calling for exactly that.

As with previous such calls, however, the proposal was rejected by the Vatican. Specifically, President of the Pontifical Council Cor Unum Cardinal Paul Josef Cordes replied that the Church has a duty to conserve the works of art in its possession. In any case, he added, it would be illegal for the Vatican to sell them.

Perhaps the Cardinal's response is fair enough. After all, selling the Vatican's treasures could hardly provide a long-term solution to the problems confronting the developing world.

Nevertheless, if one puts Cardinal Paul Josef Cordes' insistence that the Vatican has a duty to conserve its treasures alongside the Pope's call for rich nations to be less zealous in asserting their intellectual property one is driven to a certain conclusion.

The Vatican owns one of the oldest libraries in the world, the Biblioteca Apostolica Vaticana (BAV), which contains one of the most significant collections of historical texts in the world. BAV's holdings include 1.6 million antique and modern printed volumes specialising in the fields of palaeography, history, art history, classical literature, and philology, as well as 8,300 incunabula (books printed before 1501, of which 65 are printed on vellum), 150,000 manuscript and records volumes, 300,000 coins and medals, and more than 100,000 prints.

This is treasure indeed. And yet BAV is still a private library, and access to it is severely restricted (even undergraduates are not entitled to readers' tickets). Does not a duty to conserve this treasure also imply a duty share it with the world? Certainly BAV's current access policy could hardly be said to be in the spirit of open access.

As it happens, no one has access to the library at the moment, following a decision in 2007 to close it for three years for a programme of renovation and re-building. This is the first time in its 500-year history that the library has been closed, and the decision attracted some criticism from scholars around the world, not least because of the very short notice they were given before closure.

Moreover, while the library is expected to re-open next year, there is no indication that access will be liberalised in any way. This seems a great shame.

In the age of the Internet, of course, access to a library's holdings can be greatly enhanced by providing online access. And today many libraries around the world are busy digitising their holdings with this aim in mind.

Indeed, thanks to the generosity of the Social Investment division of Hewlett Packard (HP), in 2002 the Vatican Library was also able to announce plans to digitise some of its holdings too. The stated aim was "to give millions of people online access to the vast artistic and cultural heritage of the Vatican's Apostolic Library."

The HP press release announcing the project added: "The new part of the Holy See Web site will include images of manuscripts which, until now, have only been accessible to professional scholars and professors."

Seven years later what has been achieved? Browsing the library's web site this is not clear. I was unable to find a single image, although presumably there are some available as there is a reference to them. Perhaps users need to know of their existence and precise whereabouts before they can view them?

Unfortunately my several email enquiries to the library asking for details went unanswered, and some three weeks after contacting HP's PR Company, Edelman, I have yet to be put me in touch with anyone at HP who can enlighten me.

Chilling note

For those who do know what they want, and its exact location within the library, it is at least possible to order images (plus photocopies and CD-ROMs) of holdings remotely, and have them sent to you — assuming that the online ordering system is operating during the library's closure: this too is not clear.

However, in light of the Pope's call for less zealous assertion of intellectual property, BAV's approach to copyright appears somewhat over-proprietary. In addition to having to pay a fee users must sign a copyright form that suggests the library is as zealous as any Western corporation when it comes to asserting its own intellectual property.

Those requesting images, for instance, are told in no uncertain terms, that they must "treat the material as copyrighted by the BAV, and with respect thereto will respect, observe and comply with all national and international laws, rules and regulations with respect to the rights of authors and publishers, with respect to copyright or other intellectual property."

But it is the final sentence of the terms and conditions that strikes a particularly chilling note. Having agreed to use the material exclusively for private study, and keep it "in my personal custody and control at all times" the user is required to agree that, "BAV may, at its discretion, submit any dispute with me arising in relation to this application to any court of competent jurisdiction, including, but not limited to the appropriate judicial authority in the State of Vatican City."

Clearly there is a difference in both scale and scope between providing access to images of ancient manuscripts held in the Vatican library and ensuring that people in developing countries have access to the latest AVRs. Nor does it appear that BAV is any more more vigorous in asserting its IP than other libraries and museums.

But given the Pope's recently stated views on the topic of intellectual property is it not time for the Vatican library to take a more enlightened approach to its own IP. Why not, for instance, make its images available under a Creative Commons licence?

It is of course possible that such plans are already afoot. However, nothing on BAV's web site even hints at this.

Perplexed and alarmed

Back to the question of whether the Pope supports OA: If he were asked the question (and knew what OA was) he would doubtless say he does support it. But if he is genuinely concerned at the way in which rich countries are asserting their intellectual property should the Vatican not be leading from the front?

Unfortunately the possibility of this looks somewhat remote at present. A month after Pope Benedict was elected a decree was issued by the Vatican asserting that copyright in all his works belongs "in perpetuity and worldwide" to the Vatican's publishing house, Libreria Editrice Vaticana, known as LEV.

While the claim outlined in the decree seems a little less eternal today, it nevertheless clearly states that LEV has been assigned "exercise and custody, permanently and throughout the world, of every moral copyright and of all the exclusive financial rights — without any exception — over all the deeds and documents through which the Supreme Pontiff exercises his own Magisterium."

As such, it continues, LEV has full authority, "to initiate legal and judicial proceedings, to propose any action in order to ensure the full protection and realisation of these rights and to resist any claim or request from third parties."

An associated Communiqué also claims retrospective rights in the Pope's writings.

And it seems that LEV has every intention of exercising these rights vigourously. Shortly after the copyright decree, for instance, Italian publishers began to receive letters from the Vatican's legal department demanding copyright fees.

According to CBCNews, for instance, Marco Tosatti, a Vatican correspondent for Turin daily La Stampa, and his Italian publisher, were in 2006 sent an $18,500 bill for publishing Pope Ratzinger's Dictionary, a slim volume of the Pope's thoughts on abortion, freedom, conscience and other issues.

Vittorio Messori, who has co-authored works with both Pope Benedict and John Paul II, was quoted by the London Times as saying that he was, "perplexed and alarmed" at this turn of events. It was, he said, "wholly negative and absolutely disastrous for the Vatican's image."

A pope's words, Messori added, should be available to all free of charge, and to "cash in in this way surrounds the clergy with the odour of money".

A Vatican spokesman told the Times that the Holy See had to defend itself against "pirated editions". He added that the move was also aimed at preventing "premature publication", as the Vatican often released text to journalists under embargo, and did not want that text published before the embargo period ended.

Perhaps the Vatican is asserting its copyright less aggressively today. There is, however, no evidence to suggest that it is.

Certainly its actions of three years ago were not in the spirit of open access. As OA advocate Peter Suber commented at the time: "Not only is the Vatican abandoning free access and distribution for papal documents. It's abandoning any equivalent of 'fair use' and it's doing all this retroactively as well as prospectively. It's hard to believe that the Vatican will gain more than it loses from this. I predict not only ridicule and dissent, which have already started, but litigation and a huge increase in pirated editions — roughly in the way that a prohibition on flag burning would stimulate flag burning. And does the Vatican really need money more than impact?"

The problem the Vatican faces, of course, is that (as Suber implied) in the age of the Internet it is very hard to prevent copyright infringement. The BAV's 2002-2003 annual report acknowledged as much (in a section entitled Copyright and Property Rights): "No news on this front, the problems are still the same, and have to deal with individuals who still seem not accept the property rights of the images and most of all with Institutions: publishers, universities, libraries, etc. not always respecting the law in force."

The fact is that unless a copyright owner is prepared to be as ruthless as the Recording Industry Association of America (RIAA) in suing people there appears to be little that can be done to prevent copyright infringement in a digital environment. And the Vatican would surely not want to go down that road.

All in all, perhaps it is time for the Vatican to embrace the more liberal access approaches advocated by the OA and Creative Commons movements.