Copyright v. Human Cloning

By Nadav Mazor

Reprinted with the author's permission

nadavmazor@hotmail.com

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If you could duplicate a person other than yourself, who would it be? This is not a hypothetical question. Human cloning, may allow you to do that, with or without the clonee's consent. Once human cloning technology is available all you'll need is the desired DNA, and that can be very easily obtained: It is called DNA piracy. The ease of stealing DNA for cloning purposes raises the following question: how is the law going to protect my genes and what legal remedies are afforded in such a case. DNA Copyright Institution Inc.[1], a privately held corporation in San Francisco, proposes a solution. It promises copyright protection to your genetic profile for only $1,500. The visionary DNA Copyright institute, founded by Andre Crump, is trying to persuade celebrities to use its services to strengthen their legal position should anyone decide to clone them against their will. Mr. Crump claims that copyright protection will prevent others from duplicating the DNA in printed, electronic, photographic or biological form, and will increase one's chances to successful prosecute a copyright case against the cloner. The service sounds persuasive, especially for those whose unique DNA is considered a genetic success. The need for personal DNA protection is based on various legitimate reasons, such as fear of forced parenthood followed by child support claims. Crump's insight regarding future human DNA banditry is very reasonable given that human cloning will be fashionable sooner or later, but is copyright law the proper legal instrument to fight it? Copyright Law The U.S. Copyright Law[2] protects "original works of authorship" that are fixed in a tangible form of expression including works of literary, dramatic, musical, artistic, and certain other intellectual works. Copyrights to 'works of authorship' are available immediately and automatically become the property of the author; no registration is needed. Only the author or those deriving their rights through the author can rightfully claim copyright, which entitles them to exclusively reproduce the work, prepare derivative works, distribute copies of, perform it publicly, display the work publicly, as well as the right to attribution and integrity of the work. Applying copyright law to human genetic piracy cases presumes that an individual's DNA is a unique expression. That uniqueness justifies a legal privilege, which arguably guarantee a person the exclusive legal right to duplicate his genes into any form of copy. For example, the DNA copyright owner will exclusively be allowed to create biological copies, especially to create offspring carrying his or her genes. Therefore, in Human Cloning cases, the owner will argue that an unauthorized biological duplication of his unique DNA by cloning technology is actually the "copying" of a "work of authorship" against the author's will. However, for this argument to prevail in court plaintiff must first prove that a person's DNA is a copyrightable subject matter. Only after successfully passing that step, a claim of copyright infringement by unauthorized cloning may be established. But then, should the courts enforce the copyright of human genes? Copyrighted genes Although same general DNA structure is common to all humans, one may argue that the specific DNA formulation in a person is unique and thus is a protected "original work". Arguably, a person's cell is a work "fixed in a tangible form of expression" which can be copied by cloning into another person. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. The copyrighted expression is the actual DNA regardless of whether it is fixed on paper or in a DNA strand. The DNA can be stored for long periods of time in DNA libraries or in actual living organisms; therefore it is fixed for more than a transitory time as required by the law. It is further argued, that although copyright law protects only "authored works" that fit one of the traditional categories (literary, artistic, musical expressions, etc), a DNA may still be considered copyrightable subject matter. U.S. courts have stated that these categories should be viewed broadly and may change the way authorship is commonly defined. Accordingly, the term "literary works" was held to include computer programs and digital "compilations" although they are not purely human authorship. Essentially, a copyrightable literary work can be merely a string of numbers or symbols if it is original and fixed. Thus, genetic code, which is a string of symbols of the nucleotides of DNA: adenine, thymine, guanine, and cytosine (symbolized as "A", "T", "G" and "C") should fit to literary works category. If so, a forced clone is an unauthorized "copy" of the original work. Though it may seem a compelling argument, it is unlikely that a person's DNA, manifested in any form, will be recognized as subject matter of a copyright. Even though an individual genetic blueprint is a unique expression of the human DNA, that expression should not be considered a protected work. So far, the U.S. Copyright Office has unofficially stated that it will not grant copyright registration to gene sequences or DNA molecules because they are not copyrightable subject matter.[3] The main reason is that human DNA lacks originality and has only a utilitarian function that makes it patentable but not copyrightable.

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