By Priyanka Kher
Science and technology continues to envelop almost every sphere of human life; it has even come to redefine the sacrosanct cycle of birth and life. The perfect example lies in the entire gamut of genetically engineered organisms and the possibilities attached therewith. In order to regulate this development, legislators and legal commentators have created a framework of clear-cut intellectual property rights. Trouble arises when the express demarcations between the IPRs such as patents, copyrights, trademarks, geographical indications are dissolved in an attempt to ensure more and diversified protection to a said subject matter. Such is the case with genetic information, which is being considered for copyright protection.
The idea of copyrighting genetic information
Commentators argue that when a scientist creates a new sequence of nucleotides to form a DNA strand, he creates a work of authorship. Further it is said that a new DNA sequence, designed by a scientist, qualifies as a work of original authorship because the specific order or sequence of the base pairs in DNA is conventionally written out and is fixed in a tangible medium of expression (the DNA itself). To determine whether the tests for copyright protection, that is, originality, authorship and fixation are met, a brief mention of the process of genetic engineering is essential.
The premier method of recombinant DNA engineering is the Cohen-Boyer process. In this process, one natural DNA molecule taken in a test tube is broken, simply by mixing a specific protein (restriction enzyme) with it. The same thing is done to another natural molecule in another test tube. They are then combined in the presence of a ligating enzyme and by a process called sonic shaking. The new combinations comprise fragments from the different molecules and an artificial, spliced DNA sequence is created.
This particular sequence, arrangement of the nucleotides (A, T, C, G) in a gene strand, will perform a specific function and caters to specific needs. It is argued that the creator uses his skill, labour, objectivity, creativity, and understanding in designing a spliced gene by deciding the type of separate molecules to be taken, the chemical environment created for the reaction, the amount of heat, pressure etc. applied. Therefore commentators maintain that the creator of a genetically engineered gene meets the statutory requirements of originality, authorship and fixation.
Here the DNA acts as the “copy” for the expression of the nucleotide sequence for producing a protein, regardless of whether the sequence is fixed on paper or in a DNA strand. It is also said that because DNA sequences are a type of biological computer program, and computer programs are copyrightable, drawing an analogy DNA sequences should also be copyrightable. The genetic information acts as a program for production of a specific type of protein.
Biotechnology arose in the early 1980s at the time when patent protection of biotechnology seemed doubtful. The position earlier was that living organisms could not be patented, but this changed with Diamond v. Chakrabarty (447 U.S. 303), which permitted patent protection of genetically modified organisms.
Arguments against expanding scope of copyright protection
Such an attempt of expanding the scope of copyright to squeeze in subject matter seems rather unnecessary. Diamond v. Chakrabarty established an adequate slot for protection for works of biotechnology and opened the doors for patenting “anything under the sun which is man-made”. It is accepted that originality becomes more problematic in works and functional works, which characteristically adhere to physical realities or to formulae. This is the case with genetic works, which are essentially functional in nature and are only a set of facts and figures.
It is also known that mere labour is no substitute for creativity and originality since the sweat of the brow doctrine is no longer in force. Therefore works of biotechnology do not satisfy the requirement of originality as required under copyright law.
Even if interpretations are stretched to the extent of including genetic works as works of original authorship, it is directly hit by the merger doctrine. It has been observed in numerous cases that if there is “only one form of expression or at best only a limited number of ways of expression”, copyright protection can be withheld. This is because protection of such an expression may result in a monopoly on the idea itself.
Ideas act as a concept or building blocks, a necessary foundation to create expression and monopolizing a single idea may restrict innovation and creative expressions, which goes against the very purpose of having a sound intellectual property regime.
Now, genetic information is expressed in A, T, C, G. The number of such nucleotides are limited in number. Therefore in order to “design” a genetic code, which performs a particular function, limited ways are available to arrange the nucleotides. It is beyond doubt accepted that arrangements and compilations are subject matter of copyright.
However, there may also be situations where a particular arrangement of genetic information proves to be the most efficient arrangement; here also the expression may merge with the data and be unprotectable because it is the sole form of expression of the idea or it is necessarily identical to the idea, efficiency being a type of necessity.
Another argument against copyright protection to genetic information is that of products of utility or functionality. The structure or pattern of a DNA is determinative of the function that the DNA will perform and cannot in any way be separated. Thus, the aesthetic and functional parts of genetic information in a DNA strand cannot be separated. In such an event a copyright cannot be granted since the subject matter would be absolutely beyond the scope of copyright protection.
Therefore arguments in favour of expanding scope of copyright protection to include genetic information sound rather futile and unnecessary.