DNA Rules: Legal and Conceptual Implications of Biological Lock-Out Systems

Abstract:     
Recent advances in genetic engineering now allow biological inventions to be programmed in a fashion resembling the restrictive programming of digital media. These biological "lock-out" systems restrict unauthorized use of genetically engineered seeds in much the same way that digital rights management (DRM) systems restrict the use of digital media. Indeed, these new genetic use restriction technologies, known as "GURTs," raise many of the same policy issues that have been identified with DRM. In both cases, the substitution of technological protection for legal protection allows private parties to displace the public policy balance of ownership and control that is inherent in intellectual property law.

The proliferation of restrictive technologies such as DRM and GURTs poses a challenge not only to the traditional balance of control over intellectual property, but also to our understanding of legal doctrines related to ownership and control. In particular, the ability to embed contractual terms in restrictive technologies requires a re-examination of the concepts of disclosure and consent in licensing transactions involving such technologies, as well as a reconsideration of commonly employed notions of property and contract. As restrictive technologies blur the distinctions between property, contract, and physical products, these categories may be redefined in light of the interplay between law and the values that restrictive technologies embed in the design of the physical products.

Keywords: intellectual property, agriculture, GURTs, DRM, property, terminator, GMO, biotechnology, PVPA, PPA, bag-tag, seed wrap

JEL Classifications: Q16, Q13, O31, O32, O34, K11, D45, L82, L86

Accepted Paper Series