Copyrighting DNA Is a Bad Idea
This article is pretty far below Nautilus&#x27;s usual standards. Though I don&#x27;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 &quot;artistic&quot; or &quot;aesthetic&quot; 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.)<p>Copyright law is used to prevent literal copying. If I embody certain ideas in a particular way, copyright law just says that you can&#x27;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.)<p>Patents, in some ways, are very different: to simplify things a bit, they allow an inventor to protect the <i>idea</i> of accomplishing a certain task in a certain way.<p>Software is interesting because it exists in both realms. Code embodies a set of ideas in a particular way, and <i>also</i> embodies patentable methods for achieving a certain task. The article frames this legal development as though it was somehow unnatural--something that Congress &quot;decided&quot; 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.<p>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 &#x27;easily&#x27; 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.)<p>Of course, I don&#x27;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&#x27;t discuss any of those interesting things. Instead, it sets up a legally inaccurate conception of the &quot;purpose&quot; of copyright law and uses that, along with the &quot;difficulties&quot; of applying copyright law to software, to make it seem as though copyright is just not conceptually the right fit for modified genomes.<p>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 <a href="http:&#x2F;&#x2F;www.copyright.gov&#x2F;reports&#x2F;db4.pdf" rel="nofollow">http:&#x2F;&#x2F;www.copyright.gov&#x2F;reports&#x2F;db4.pdf</a>