THE TRUTH ABOUT DNA AND COPYRIGHT: AT LAST IT CAN BE TOLD

Yesterday the IPKat asked about copyright protection for DNA sequences. Today he has received the following responses:

Trevor Cook (Bird & Bird, right), a noted commentator on IP issues who is currently preparing a third edition of Pharmaceuticals, Biotechnology and the Law, draws attention to a major contribution to legal thought on the issue:

"Laddie Prescott & Vitoria has an entire Chapter (38, in the 2nd Volume) devoted to the subject, and concludes "In so far as a naturally occurring sequence of amino acids or DNA bases is elucidated a copyright work is created.

It would be infringed by copying the sequence of such letters. However making a molecule using the sequence would not infringe copyright or design right." It also discusses novel such sequences, and other molecules".

Patent agent Michael Harman adds:

"Is it arguable that on a strict interpretation of what "making the work" involves, there is no significant skill and effort involved? It's merely copying down the sequence which the DNA analysis machine generates (or even printing it out automatically). But against this, there is the question of copyright in machine-generated works. Also, there are the cases on copyright in generating event listings - TV, football, and racing listings seem to be copyright although the skill and effort is (at least for some of these) in generating the sequence of events to meet the various constraints rather than producing the print-out".

[on this comment, see STOP PRESS, below]

Solicitor-advocate Richard Vary (Linklaters) writes:

"You probably know the basics: DNA sequences can be recorded by use of four letters, C, A, G and T. These denote the base in each half of the double helix: C for Cytosine, A for Adenine, G for Guanine or T for Thymine. Because C always pairs with G and A always pairs with T, we don't usually record the other half of the double helix because it is obvious: where one half reads CGAGT the other half would read GCTCA (this is a slight simplification: incorrect base pairing does occur, and there are three other bases that are sometimes found). So we can record the sequence of an entire DNA molecule with a 4 letter alphabet.

Subsistence

I agree that a sequence could attract copyright protection as a literary work, but it would need to be original. If a cell biologist were to come up with his own sequence, that sequence would attract copyright protection (assuming sufficient length, originality etc). However, if a cell biologist were to sequence a naturally occurring piece of DNA, this wouldn't attract copyright protection because it is not an original work: he's merely copied down something that was already there to be read using a known form of notation. It will have taken a huge amount of skill and effort, but there is no scope for originality in the exercise.

I'm not sure whether copyright subsists only when the sequence is written down on a page, or whether it would also be true if it was recorded by creating the sequence as a molecule. s. 3(2) of the Copyright, Patents and Designs Act 1988 does allow a literary work to be recorded "in writing or otherwise". I don't think that anyone would argue that a literary work that has been stored on disc didn't attract copyright protection because it is merely recorded in the alignment of magnetic molecules. So I can see an argument that the recording of the literary work in the molecule itself would attract copyright.

Infringement

I agree there can be no infringement without copying. But if the molecule itself is a recording of the literary work, and if cell biologist B sequenced a molecule created by cell biologist A, he would be making a translation of the work.

I don't agree that recording a copyright sequence in another notation would not infringe. To get the sequence another cell biologist would need either access to the paper record, or access to the molecule itself. In either case recording the sequence in a different notation would be a translation.

What about the cell biologist who takes an original sequence, recorded on paper, and creates a molecule according to that sequence? Well, section 51 says that it's not an infringement of copyright in a design document to make an article to that design. Figure that one out...

The IPKat remains unconvinced that there's an infringement issue here; but then, he is not a believer in infringement by deduction and inference. He feels that, since copyright is an exception to the basic principle that you can copy whatever you want, its infringement provisions will be interpreted restrictively, particular in instances such as this where the consequences of copyright protection can be of considerable and unforeseen magnitude. Merpel is just delighted that C, A, G and T give you enough letters to spell "cat".


STOP PRESS: the IPKat has received the following response to Michael Harman's comment above. Luke Ueda-Sarson says:

"I would say it is more than arguable...

A "machine-generated" work is surely copyrightable precisely because it is NOT really machine generated. It is "generated" by human input, and the machine is being used as an aid (albeit an elaborate one) in expressing a human input, no matter how minimal the human input may be (setting parameters and hitting the 'go' button, for instance). This is really just an extansion of using a paintbrush to create a picture, yet nobody talks about the Mona Lisa being "machine (paintbrush)" generated.

This contrasts with a DNA sequence. A DNA sequence is a fundamental characteristic of a molecule - it IS the molecule in patent parlance - "structure is identity". There can be no creativity in the sequence itself. Anybody looking at the molecule must arrive at the exact same sequence, for the sequence is the molecule.

This can perhaps be more readily understood by those less familiar with chemistry by looking at a somewhat simpler molecule than the average DNA strand: water. Who would claim a copyright in the formula H2O? But the formula H2O is in essence no different from the formula GCATCTTAACT...

If I look at a molecule, whether I have plucked it out of a pond, or synthesised it myself, ie. creating it rather than merely discovering it, and upon analysis discover (or, as the case may be, confirm) its formula to be H2O, I don't see how I can then claim a copright in that formula, since the formula IS the molecule iself, not an "expression" of the molecule. There is zero expressivity in the formula H2O, no creativity is involved in arriving at it.

And ditto for all molecules of the ilk GCATCTTAACT...

I would like to know what arguments are presented in Laddie Prescott & Vitoria for the contention that molecular formulae are creative works of art. I can't see how they can be creative, let alone works of art worthy of copyright protection. A patent, yes, but that is a different kettle of fish, isn't it?

This seems to be yet another case of copyright intruding into an area, like software, that logically should come under the purview of patents, but the law has developed in a way that ignores scientifc reality and thrown logic out the window... ".