Copyright for Engineered DNA: An Idea Whose Time Has Come?

Abstract

The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing our planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways ill-suited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed side-by-side, the two forms of intellectual property complementing one another. Numerous academic commentators have rejected the notion of copyright for engineered genetic sequences (the primary output of synthetic biology), based in large part upon a misinterpretation of copyright law and/or a failure to appreciate the profound advances in synthetic biology that have occurred in recent years. This article makes a case for extending copyright protection to engineered DNA, based in large part upon the striking analogy between engineered genetic sequences and computer programs, made more compelling by the growing convergence of software engineering and synthetic biology. The major doctrinal leap occurred 30 years ago when Congress and the courts sanctioned the use of copyright to protect computer programs. A further extension to engineered DNA would represent a comparatively modest incremental expansion, and would be comfortably supported by current copyright doctrine without any need to amend the Copyright Act (although certain clarifying and limiting amendments would be desirable). The article critiques, and to a large extent refutes, a variety of doctrinal and policy arguments that have been raised by commentators against extending copyright protection to engineered DNA, and concludes by outlining a number of positive policy objectives that could be addressed with you when you such an extension of copyright law.

Keywords: Synthetic biology, biotechnology, intellectual property, copyright, patent, engineered genetic sequence, engineered DNA

JEL Classification: K19, K20, K23, K29, K39, O31, O33, O34, O38