
Copyrighting DNA Is a Bad Idea - dnetesn
http://nautil.us/blog/copyrighting-dna-is-a-bad-idea
======
skosuri
Interesting that this is coming up again. Over a decade ago, we designed and
built a synthetic, refactored phage [1]. At the time, we (Drew Endy, Leon
Chan, and I) had discussions with lawyers about copyrighting and open-sourcing
it. The lawyers we spoke with (Jamie Boyle & Arti Rai amongst others) seemed
to think it might be possible, but in the end we all agreed we didn't really
want to be the ones that opened up that can of worms [2-3]. Later, we (George
Church and I) encoded digital information in DNA, and made billions of copies
of the work [4]. One of the reasons we chose George's book, is that it was
clear that he owned the copyright, he cleared it with his publishers, and so
we didn't have to worry about being sued by someone.

Anyways, I think the larger point is that patents can be bad, especially for
synthetic biology if they cover very enabling technologies (they can be good
as well in many cases). The same argument could be made for copyright -
however, having both forms of IP protection would probably make things much
worse. I'm still of the opinion that it's probably better leaving things be
the way they are now.

[1]
[http://msb.embopress.org/content/1/1/2005.0018](http://msb.embopress.org/content/1/1/2005.0018)

[2]
[http://journals.plos.org/plosbiology/article?id=10.1371/jour...](http://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.0050058)

[3]
[http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...](http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2327&context=faculty_scholarship)

[4]
[http://arep.med.harvard.edu/pdf/Church_Science_12.pdf](http://arep.med.harvard.edu/pdf/Church_Science_12.pdf)

~~~
fabled_giraffe
> I'm still of the opinion that it's probably better leaving things be the way
> they are now.

First off, I really appreciate your contribution to the topic!

In response though, I'm curious why you think things should be left as they
are. Laws around patents and copyrights allow these sorts of things, and those
laws are different or non-existent, depending on where you are in the world.
It would seem to be anything but something that needs to be unchanged. While I
think that status quo can help avoid further problems in many cases with law,
patent and copyright reform needs to be happen and is inevitable, and this is
purely a case of people working within existing laws, whether or not we agree
with their course of action.

~~~
skosuri
IMO & IANAL: IP of one form or another is probably necessary and beneficial
for bio. If you make an invention, and it's trivially copied, then you need
some protection to commercialize.

There are a few options:

1\. patents -> they are expensive to get, and are medium term, but can be bad
if they are trivial patents -> the biggest issue here is the non-obviousness
part seems broken (as it often is in tech).

2\. copyright -> easy to get, last forever , but don't cover ideas, which is
very good. That said, copyrights could have much worse consequences if they
are taken advantage of (b/c of ease of obtainment, and length), and of course
they will.

3\. MTA -> material transfer agreements probably are not viable for much
longer... DNA and cells are too easy to write and edit now.

4\. Secrecy -> This seems like a bad idea.

5\. Something brand new -> I could think of individual policies that seem like
good ideas, but I worry that I haven't thought about the ways that those
policies could be captured and exploited... it seems like we are more likely
to be at a better place with less risk if we can work on making the existing
system better.

~~~
hutzlibu
6\. open-source and crowd-funding research

Requires a change of mind in the masses, though, to make this work for big,
longterm projects ...

But I am positive, that we will see more of it, in the future ...

------
bduerst
Okay, this article is pretty off target.

To begin, it's a patent dispute, not copyright. It's a dispute over the
process of using mRNA targeting with Cas9 proteins, not the Cas9 genetic
sequence itself (which is what copyright would be).

Secondly, their assumption "Copyrights [or Patents] are intended for artistic
works." is only partly true - their main purpose is to promote the progress of
science and useful arts, e.g. knowledge.

Whenever you have a technique that provides value like this, there is
typically an amount of work that is invested into ensuring that the process
works. Expensive work. Lots of highly trained people with expensive tools and
expensive supplies that you don't see unless you're in the industry.

The groups are disputing over who came up with the process first because
they've invested a ton of resources into it already, and they want to
distribute that cost to people who are using this new, novel process today. A
better article would have been about the new first-to-patent rule, which is
what the court case is really about.

~~~
rflrob
Yes, the CRISPR dispute is about patents. But, as the article says in the
third paragraph, "But in the midst of this debate, perhaps a more fundamental
one is taking place", which clearly indicates it's talking about a different
debate than just the CRISPR patent.

The issue here is that CRISPR is like a printing press when scribes were state
of the art. Yes, the patent on the printing press is important, but arguably
more important is what's the status of all the stuff you can write with it.
Previously, synthesizing long stretches or precisely editing DNA was hard
enough that there weren't many people doing it (and synthesizing long pieces
of DNA de novo is still pretty niche, though there are some pushing for a
massive investment in making this tech a lot easier). But as it becomes easier
and people get more experienced, it's worthwhile to have already thought
through and discussed these issues.

~~~
bduerst
>"But in the midst of this debate, perhaps a more fundamental one is taking
place - whether some of CRISPR’s future products, like customized DNA, qualify
as copyrightable entities."

That's the full sentence in context, and no, the CRISPER-cas9 patent dispute
isn't over copyrighting the products of the technique. This author is trying
to generate outrage over copyrighting DNA which this issue isn't about. The
issue is over first-to-file.

Again, this article is pretty far off target.

~~~
nitrogen
I haven't read it, but maybe the author is using one familiar subject to spark
discussion about another less familiar subject?

------
Animats
The copyright-like protection for IC masks became obsolete once IC mask
artwork was drawn by EDA systems, not humans. If you want to copy an IC, you
work from the logic, not the masks, regenerate the layout and masks, and
usually have a different physical layout. That's why no one worries about mask
protection any more.

There's one other category that has its own special kind of intellectual
property - vessel hulls. There's the Vessel Hull Protection Act, which
prohibits making exact copies of registered vessel hull designs. (There's a
cheap way to make copies of fiberglas hulls.) This only lasts for 10 years.

The fashion industry and the auto parts industry have lobbied for similar
protection in the US, without success.

------
themartorana
I want to say "duh"...

Copyrighting/patenting Life is for me the penultimate example of corporate
greed. Luckily we won the first round here in the US [0] but we all know a
loss is merely a setback in the constant march of unchecked Capitalism.

Locking life behind lock and key serves only to slow innovations and relief
from suffering.

[0] [http://venturebeat.com/2013/06/13/supreme-court-no-you-
may-n...](http://venturebeat.com/2013/06/13/supreme-court-no-you-may-not-
copyright-human-genes/)

~~~
6nf
> .. the penultimate example of corporate greed.

Did you mean 'ultimate', or is there a worse example of corporate greed?

~~~
brezelgoring
Seconding this. What do we find if we go to the top?

~~~
themartorana
Corporate ownership of people (or The People), not just a copyright on their
DNA. You might argue it's already happening in a Corporatocracy, and I'd have
a hard time arguing with you.

When corporations not only own production and the right to prevent others from
producing, but the governing of those rights (see every copyright extension in
the last hundred years) there isn't a whole lot left.

------
cabalamat
> You don’t write code to be beautiful, you write it to be functional.

Speak for yourself.

> You really write code so it uses the least amount of memory, and is
> efficient.

No I don't.

------
dnautics
Patenting dna is also a bad idea, especially for obvious transgenics, "express
gene X from organism Y in organism Z". It's the equivalent of a software
patent that says, "program a computer to sell X... over the internet".

------
djvdorp
Am I the only one instantly thinking of Orphan Black [1] here?

[1]
[https://en.wikipedia.org/wiki/Orphan_Black](https://en.wikipedia.org/wiki/Orphan_Black)

------
olalonde
> The strongest case that could be made for it, which a couple of people
> resurrected recently, is that Congress made a decision around 1978 that we
> should put software in the copyright system. But that was a complete
> disaster.

Why was it a complete disaster? I've heard lots of criticism of software
patents or even closed source software but copyright isn't to blame for either
as far as I can tell.

------
franciscop
Cool to see my city, Valencia (Spain), on the header image. Specifically the
City of Arts and Science.

------
nthcolumn
Imaginary property is a bad idea.

------
amelius
DNA is software so all the rules that apply to software should apply to DNA.

~~~
dekhn
But DNA is also hardware (its structure encodes data, it can catalyze
reactions)! So the rules that apply to hardware... no, let's not trivialize
this by making weak analogies.

~~~
amelius
> its structure encodes data, it can catalyze reactions

Nope, it can't. It first needs to be transcribed by actual hardware (RNA
polymerase).

You can view the DNA as a harddrive platter, and the data it encodes as the
software.

~~~
dekhn
Sure, it can:
[https://en.wikipedia.org/wiki/Deoxyribozyme](https://en.wikipedia.org/wiki/Deoxyribozyme)

(I have a PhD in nucleic acid structure and function)

~~~
amelius
Okay, didn't know that :)

But still you can view a reaction of substance X with DNAzyme Y to be the
hardware X taking apart the storage of software Y in order to read it. A
destructive read operation, so to speak (or non-destructive in some cases).

~~~
dekhn
I find these sorts of analogies naive, and missing the point.

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pdabbadabba
This article is pretty far below Nautilus's usual standards. Though I don't
think it quite makes the basic mistake of failing to distinguish between
copyright and patent law, it does fail to (correctly) explain what copyright
law is all about, and why a person might think that genes are a natural fit
for copyright law. (And I do want to get this out of the way up front: Dan
Burk is just wrong if he thinks that, to be copyrightable, something needs to
have "artistic" or "aesthetic" value. It may be that this was the original
purpose of copyright long ago, but it has thoroughly been left behind by
actual copyright law, under which one clearly can copyright most collections
of data, instruction manuals, etc.)

Copyright law is used to prevent literal copying. If I embody certain ideas in
a particular way, copyright law just says that you can't come along and copy
that expression. (Note the distinction here between copying the ideas, which
is OK, and copying the expression, which is not.)

Patents, in some ways, are very different: to simplify things a bit, they
allow an inventor to protect the _idea_ of accomplishing a certain task in a
certain way.

Software is interesting because it exists in both realms. Code embodies a set
of ideas in a particular way, and _also_ embodies patentable methods for
achieving a certain task. The article frames this legal development as though
it was somehow unnatural--something that Congress "decided" to do back in the
seventies. But they decided to do it because both types of legal protections
really do seem to apply. Yes, working through the details of how to apply
copyright protection to software presented some interesting legal challenges
(and I know there are many here who think this was a bad idea for other
reasons), but the mere fact that this was a difficult process does not strike
me as a good argument for declining to extend copyright protection to other
novel forms of expression.

In principle, it seems to me that the burden really ought to be on those who
want to argue against copyrighting genes. Like source code, and like the
written word, they are a means for embodying ideas and information. In this
way, the newfound ability to 'easily' edit genomes is akin to the invention of
a new storage medium. If we were talking about a new type of optical storage,
there would be no debate about whether data encoded in that medium and format
was copyrightable. That should also make genes copyright-able by default.
(Similarly, like software, genes can also serve as embodiment of patentable
ideas.)

Of course, I don't mean to discount the fact that genes are special by virtue
with their connection to the development of life, and their origins in nature.
Both of these should give us a lot of interesting things to talk about in
deciding whether, despite everything above, we really should have different
intellectual property rules for genes. But this article doesn't discuss any of
those interesting things. Instead, it sets up a legally inaccurate conception
of the "purpose" of copyright law and uses that, along with the "difficulties"
of applying copyright law to software, to make it seem as though copyright is
just not conceptually the right fit for modified genomes.

EDIT: Previously, I had listed phone books as an example of a copyrightable
collection of data. White-pages are actually not copyrightable, though yellow
pages may be. The problem with white pages is that so little original thought
goes into compiling, sorting, etc. that it is not thought to actually embody
any original idea. But the white-pages exception is very narrow. If the
database is curated in some way, or sorted, tagged, etc., then there is a good
chance it is copyrightable. See
[http://www.copyright.gov/reports/db4.pdf](http://www.copyright.gov/reports/db4.pdf)

~~~
thaumasiotes
> It may be that this was the original purpose of copyright long ago, but it
> has thoroughly been left behind by actual copyright law, under which one
> clearly can copyright phone books

Are you sure about that one? I have a vague memory that phone books are a
standard example of something that _can 't_ be copyrighted. Specifically, a
listing of names and associated phone numbers. This is (in my memory) because
(1) a listing of names and their phone numbers is a collection of facts, and
facts can't be copyrighted; and (2) there is _no creative expression at all_
in the listing -- it is in alphabetical order. Anyone else using alphabetical
order will necessarily produce exactly the same text.

~~~
pdabbadabba
You're exactly right (though strictly speaking, white pages are probably not
copyrightable, but yellow pages may be). A phone book is maybe the worst
example I could have picked. You _can_ copyright collections of facts--the
white-pages exception is very small--but courts will look at whether you have
put "creative" thought into how you selected entries, organized them, etc.

See
[http://www.copyright.gov/reports/db4.pdf](http://www.copyright.gov/reports/db4.pdf)

I've edited accordingly.

------
Loque
I also think it is a bad way of recouping research costs.

------
exabrial
DNA is an API and therefore can be copyrighted.

~~~
charlesdenault
DNA isn't an API. DNA is the source code. The API is more similar to the
translation apparatus, but even that's a stretch.

------
searine
Saying human created DNA sequences shouldn't be copyrighted is like saying
novels shouldn't be copyrighted because they use the words.

In the US at least, case law states that we can't patent natural genes, which
is great. However, scientists are entitled to protections for their novel
work.

CRISPR is no different from any other biologic in terms of patents, and in the
long run, 20 years of protection is a drop in the bucket. Hell, by the time
they figure out this CRISPR fiasco, it'll be close to out of patent.

~~~
angersock
A better analogy would be human-created software codes.

And yeah, that's turned out _really well_ for all of us, right?

~~~
therealjumbo
Not to derail this conversation further but as far as software patents go I've
been wondering for a while why somebody doesn't try this defense:

In order to have a valid patent you need to share a sufficiently detailed
design in the patent application. What constitutes a sufficiently detailed
design? One that a current professional in the field could produce with no
further input from the patent holder and secondly one that if given to two
different implementers results in the practically the same widget. If either
of these aren't true, the patent holder has essentially not held up the spirit
of the law in so far as patents are meant to contribute back to the public.

I'm on mobile now, so I'll stop there but I think you get the idea. For
software the practical implication is that you need to submit your source code
or pseudo code as part of a valid application,because much like a mechanical
blueprint that is the design for software. Not: Input--->block
diagram--->output. With that level of spec I could patent strong AI. I know
some software patents are more sophisticated than that but I think most fail
the test above.

I honestly don't know if this has been tried before and shot down or what. Can
anyone comment on that?

Also as far as that goes, if the patent holder were to share their code in
this fashion, and it passed all the other requirements then I wouldn't really
have a problem with it.

~~~
therealjumbo
Replying to myself: I actually think most software patents would fail the
first or second half of the above test. Never mind all of it. Edit:spelling

