March 3, 2013

ATLANTA – On January 31, 2013, the Center for Law, Health & Society and the Intellectual Property Advisory Board at Georgia State University College of Law hosted a panel discussion entitled "Copyrighting DNA: Protecting Synthetic DNA Sequences as a Work of Authorship." The Student Health Law Association and Intellectual Property Law Society co-sponsored this lunchtime event, which was attended by law professors from law schools in the Atlanta area, students, scientists, and practicing attorneys.

Through the creation of non-naturally occurring DNA sequences, the rapidly developing fields of technology and synthetic biology continue to generate new and difficult ethical questions for scientists and lawyers alike. As the intellectual property community awaits the Supreme Court's holding in AMP v. Myriad this June, the panel examined a potential alternative to DNA patents: DNA copyrights.

"I thought the DNA copyright presentation was a perfect example of the sorts of issues future health law attorneys will face," commented Kyle Gregory (JD '14), a Student Health Law Association officer.  "Incredible scientific breakthroughs create unforeseen legal and often ethical challenges. In order to solve them we will be required to consider and apply traditional legal doctrines in new and creative ways."

Three experts in intellectual property addressed the question of copyrightability of synthetic DNA sequences under the Copyright Act: Andrew W. Torrance, Ph.D., J.D., Professor of Law and Docking Faculty Scholar at the University of Kansas School of Law and visiting scholar at the MIT Sloan School of Management; Michael B. Landau, J.D., Professor of Law at Georgia State University College of Law; and Brent R. Bellows, Ph.D., J.D., Partner at Knowles Intellectual Property Strategies. Professor Yaniv Heled, J.S.D, also of Georgia State Law, moderated the panel.

Bellows opened with an introduction and overview of DNA, what it is made of, how it functions and its uses in biotechnology. "We are mass producing recombinant human proteins like insulin and enzymes," said Bellows. "Gene therapy, diagnostic testing, and vaccines are all uses of DNA in the biotechnology industry. DNA is even being used as a storage medium for images, music, and documents, similar to computer source code."

Torrance followed with a discussion of the purpose of the Copyright Act and why synthetic DNA may be copyrightable. "The idea of using copyright law to protect DNA is not a new idea – scientists have talked about it for over 30 years," said Torrance. "What is new is the current assault on the patenting of DNA and the sense of need to look for other ways to protect DNA advancements," he said, referring to Myriad and other cases.

"DNA fits well within the structure of copyright law," continued Torrance. "If you look at the Copyright Act,the language is breathtakingly broad, easily encompassing synthetic DNA, and accommodating both the kinds of machines that currently read DNA, and future technologies not yet developed."

Examining the history of the Copyright Act, Landau came to the opposite conclusion. "Congress probably never considered the Copyright Act extending to DNA. The framers of the Constitution surely did not," he contended. "Over the last century, every time that a new subject matter such as musical compositions, drama, paintings, drawings, sculptures and movies has been added, Congress has acted. For instance, inclusion of computer software, which is often the analogy used for the argument to cover DNA, required Congress to make numerous additions to accommodate it." 

Bellows rounded out the panel. "I come from a different angle, a practical viewpoint. Anytime we talk about DNA in the copyright regime, I ask, what is the scope and strength of protection of the intellectual property? Is it feasible? Does it have any value?"

"In copyright law, the rule is that you can only protect the creative expression… You can't protect the functionality," Bellows argued. "Where is the value to the industry? In the functionality. At the end of the day, if DNA is copyrightable, the protection will be very thin."

"The panelists did a terrific job laying out the relevant issues from several different perspectives," said Heled. "While they varied significantly in their views on the feasibility and practical implications of affording copyright protection to synthetic DNA sequences," he added, "they all agreed that the issue of copyright protection for synthetic DNA is certainly not as moot as some have argued and is likely to come up more as synthetic DNA technology becomes more prevalent."

View the presentation.

Contact:
Stacie P. Kershner, JD
Associate Director, Center for Law, Health & Society