Skip to main content

Copyright Protection for Works in the Language of Life

By June 1, 2022August 8th, 2022No Comments

Abstract: In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their DNA. At the time, a Copyright Office spokesperson pointed out that a person’s DNA “is not an original work of authorship.” That statement is no longer self-evident. A scientist claims to have used CRISPR technology to create a pair of twin girls with human-altered DNA that may provide immunity to HIV infection and improved cognitive function. Through gene therapy, doctors can “author” changes to patients’ DNA to cure disease. Scientists “edit” bacterial cell DNA to produce medicines and industrial enzymes. Researchers have “written” original DNA encoding a GIF of a running horse. Does copyright grant exclusive rights to these creations? 

For decades, scholars have argued that DNA sequences, like computer programs, are copyrightable “works” encompassed by the Copyright Act’s definition of “literary works.” So far, the Copyright Office is unconvinced and continues to list DNA sequences and compounds as “works” that do not constitute copyrightable subject matter. This Article takes a new approach by proposing that DNA is not a “work” at all. Rather, DNA is a medium in which information is stored. In the words of the Copyright Act, DNA compounds are “copies” in which an original copyrightable work or a functional creation may be fixed. Under this framework, literature is entitled to copyright protection whether it exists as a copy printed on paper or encoded into DNA. Genetic DNA, which functions as a component of cellular machinery to produce useful chemicals, is entitled to no more copyright protection than any other machine component. Rejecting this approach and continuing to treat DNA as a “work” rather than a “copy” has real world consequences. The recent history of copyright protection for computer programs provides a cautionary tale. Mischaracterizing DNA in the way that computer programs have been mischaracterized — as a type of “work” under the Copyright Act — could lead to the extension of exclusive copyrights to the functional DNA in living organisms in the same way that copyright protection has been extended to some functional aspects of computer programs.

Download the Full Article

Other Articles from WLR Print Edition

December 1, 2022 in PRINT EDITION

A Call to Abolish Determinate-Plus Sentencing in Washington

Abstract: For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual…
Read More
December 1, 2022 in PRINT EDITION

When Uncle Sam Spills: A State Regulator’s Guide to Enforcement Actions Against the Federal Government Under the Clean Water Act

Abstract: The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders,…
Read More
December 1, 2022 in PRINT EDITION

Sex Trait Discrimination: Intersex People and Title VII After Bostock v. Clayton County

Abstract: Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections…
Read More