The author is Nadav Mazor, a Biotechnology Attorney and the legal counselor for the Human Cloning Foundation, Reproductive Cloning Network and Clone Rights United Front.  He can be reached at: nadavmazor@hotmail.com

DISCLAIMER: The information in this article is provided as a public service. It is not intended as legal advice and should not be relied upon. You are advised to consult legal counsel before adopting any of the ideas or suggestions in this material, which may or may not be applicable in your jurisdiction or to your specific situation.

If you could duplicate a person other than yourself, who would it be?

This is not a hypothetical question. Human cloning, may allow you to do
that, with or without the clonee’s consent. Once human cloning technology is available all you’ll need is the desired DNA, and that can be very easily obtained: It is called DNA piracy. The ease of stealing DNA for cloning purposes raises the following question: how is the law going to protect my genes and what legal remedies are afforded in such a case.



DNA Copyright Institution Inc.[1], a privately held corporation in San
Francisco, proposes a solution. It promises copyright protection to your
genetic profile for only $1,500. The visionary DNA Copyright institute,
founded by Andre Crump, is trying to persuade celebrities to use its
services to strengthen their legal position should anyone decide to clone
them against their will.



Mr. Crump claims that copyright protection will prevent others from
duplicating the DNA in printed, electronic, photographic or biological form, and will increase one’s chances to successful prosecute a copyright case against the cloner.



The service sounds persuasive, especially for those whose unique DNA is considered a genetic success. The need for personal DNA protection is based on various legitimate reasons, such as fear of forced parenthood followed by child support claims. Crump’s insight regarding future human DNA banditry is very reasonable given that human cloning will be fashionable sooner or later, but is copyright law the proper legal instrument to fight it?



Copyright Law


The U.S. Copyright Law[2] protects "original works of authorship" that are fixed in a tangible form of expression including works of literary,
dramatic, musical, artistic, and certain other intellectual works.



Copyrights to ‘works of authorship’ are available immediately and
automatically become the property of the author; no registration is needed. Only the author or those deriving their rights through the author can rightfully claim copyright, which entitles them to exclusively reproduce the work, prepare derivative works, distribute copies of, perform it publicly, display the work publicly, as well as the right to attribution and integrity of the work.



Applying copyright law to human genetic piracy cases presumes that an
individual’s DNA is a unique expression. That uniqueness justifies a legal
privilege, which arguably guarantee a person the exclusive legal right to
duplicate his genes into any form of copy. For example, the DNA copyright owner will exclusively be allowed to create biological copies, especially to create offspring carrying his or her genes.



Therefore, in Human Cloning cases, the owner will argue that an unauthorized biological duplication of his unique DNA by cloning technology is actually the “copying” of a “work of authorship” against the author’s will.



However, for this argument to prevail in court plaintiff must first prove
that a person’s DNA is a copyrightable subject matter. Only after
successfully passing that step, a claim of copyright infringement by
unauthorized cloning may be established. But then, should the courts enforce the copyright of human genes?




Copyrighted genes



Although same general DNA structure is common to all humans, one may argue that the specific DNA formulation in a person is unique and thus is a protected “original work”. Arguably, a person’s cell is a work “fixed in a tangible form of expression” which can be copied by cloning into another person. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. The copyrighted expression is the actual DNA regardless of whether it is fixed on paper or in a DNA strand. The DNA can be stored for long periods of time in DNA libraries or in actual living organisms; therefore it is fixed for more than a transitory time as required by the law.



It is further argued, that although copyright law protects only “authored
works” that fit one of the traditional categories (literary, artistic,
musical expressions, etc), a DNA may still be considered copyrightable
subject matter. U.S. courts have stated that these categories should be
viewed broadly and may change the way authorship is commonly defined. Accordingly, the term "literary works" was held to include computer programs and digital "compilations" although they are not purely human authorship. Essentially, a copyrightable literary work can be merely a string of numbers or symbols if it is original and fixed. Thus, genetic code, which is a string of symbols of the nucleotides of DNA: adenine, thymine, guanine, and cytosine (symbolized as “A”, “T”, “G” and “C”) should fit to literary works category. If so, a forced clone is an unauthorized “copy” of the original work.



Though it may seem a compelling argument, it is unlikely that a person’s
DNA, manifested in any form, will be recognized as subject matter of a
copyright. Even though an individual genetic blueprint is a unique
expression of the human DNA, that expression should not be considered a protected work.



So far, the U.S. Copyright Office has unofficially stated that it will not
grant copyright registration to gene sequences or DNA molecules because they are not copyrightable subject matter.[3] The main reason is that human DNA lacks originality and has only a utilitarian function that makes it patentable but not copyrightable.



Human genetic code lacks originality



In essence, “originality” means that the work must be independently created, not copied from something else. It must possess at least some minimal degree of creativity.[4] Section 102(b) of the Law explicitly excludes pure “discovery”, as distinguished from a description, explanation, or illustration. This statutory exception intended to prevent monopoly over natural phenomenon, which lacks any human creativity. Mere facts are not copyrightable because facts do not owe their origin to an act of authorship. The U.S. Court persuasively put forth the following logic:



“The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has
merely discovered its existence...one who discovers a fact is not its
“maker” or “originator.” The discoverer merely finds and records. Census takers, for example, do not “create” the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. The same is true of all facts--scientific, historical, biographical, and news of the day. They may not be copyrighted and are part of the public domain to every person.” [5]



Following this approach, the biologist who clones an individual’s genetic
code is merely copying facts of nature so there is no independent creation
as required for originality.



DNA is solely functional


A work that has only a utilitarian function, as distinguished from the
aesthetic features, is not copyrightable.[6] The distinction between
functionality and aesthetics represents the basic borderline between Patent Law and Copyright Law. Only works that convey information to, or portray an appearance on, human beings are allowed through the gate of Copyright. The purpose of this prohibition is to prevent copyrighting of works that should meet the patent system standard. However, a work is copyrightable if its artistic aspects can be identified separately from, and are capable of existing independently of, the utilitarian aspects.



DNA is a code for production of proteins and its aesthetic features are not physically or conceptually separable because the design of the DNA
sequence[7] is definitely influenced by utilitarian considerations. Only
“useless” representation of DNA sequences or genetic element combinations, developed for artistic pleasure, receive any protection.[8] Therefore, particular human DNA is not copyrightable subject matter and should be, if at all, subject to patent law.



The Doctrine of Merger


Copyright law does not protect ideas. Only the expression of an idea, but
not the idea itself, may be copyrightable. However, when there is only one way to express an underlying idea, the courts apply the Doctrine of Merger. According to this doctrine, the idea will merge with the expression as to make them indistinguishable. The result is a non-copyrightable expression. Courts have reached this result by reasoning that copying the expression in such circumstances would confer a monopoly of the idea on the copyright owner free of the conditions and limitations imposed by the law.[9] The doctrine of merger has been applied in a variety of settings, from ornamental jewelry, to maps, to contest disclaimers.



Truly, each human carries a unique expression of the human DNA. However, that DNA expression is also an idea, which may be manifested in one possible biological expression – the human that derives from it. Therefore, following the Doctrine of Merger, a merge between the specific DNA and its sole possible ‘living expression’ should be made. Subsequently, a particular human’s DNA is an unprotected “idea”.



John Moore case


Copyright is a part of intellectual property - a sort of personal property
that presumes ownership upon the subject matter. Hence, applying copyright law to human DNA assumes that DNA is property. Is that so? In California, a patient, John Moore, underwent a medical treatment for hairy-cell leukemia. He later discovered that his physicians used his unique tissue without his consent to develop a patented cell line worth a fortune. Moore filed a suit claiming that his cells were his personal property and that the defendants have interfered with his possessory and ownership interests. The California Supreme Court found that Moore had no rights to a share of the patent proceeds because the patented gene exists within every human and thus is in no way a "likeness" of Moore. The court also held that a human cell is a naturally occurring organism that is not a personal property in the context of the argued tort of conversion. [10]

Would the result in Moore’s case be different if Moore had claimed that the defendants infringed on his genetic copyright? The plaintiff’s ownership or power to authorize the use of his genes was rejected in the context of tort against personal property. This approach should be applicable in the context of copyright, also a personal property based cause of action, under the same rational: one has no property interest in his specific genes.



DNA profiles

When a DNA is processed to generate a pattern for each person, that is
generally termed as a ‘DNA profile’. This profile is unique for each person excepting that derived from identical twins.[11] DNA copyrights supporters argue that even if the human DNA and its unique expressions are natural facts, nevertheless, a protection should be afforded to those ‘DNA profiles’.

DNA profiling technologies were originally developed and introduced in
courtrooms as powerful tools in the identification of individuals in
criminal and paternity cases. To identify individuals, forensic scientists
scan about 10 DNA regions that vary from person to person and use the data to create a DNA profile of that individual (sometimes called a DNA
fingerprint). There is an extremely small chance that another person has the same DNA profile for a particular set of regions.[12] There are five methods of DNA analysis currently in use. Each method examines different segments or regions of the human DNA. These regions (or loci) would appear as individual fragments during DNA analysis and a pattern is obtained showing differences between fragments caused by differences in size or composition of various regions analyzed.[13]

Today, the most common profiling method is called Short Tandem Repeat (STR), which analyzes repeating fragments of DNA and retrieves distinctive patterns within the genetic code. It is the variable number of these repeats that distinguishes one profile from another. DNA samples are processed to identify a group of specific DNA regions (loci) by using DNA marker probes that seek out and bind to a complementary DNA segment.[14]



Limited protection to DNA Profiles


The DNA Copyright Institution Inc. argues that a DNA profiles protection will prevent unauthorized cloning. The argument is two-fold: First, unlike the DNA material itself, a DNA profile is a human-made creation and therefore should be a protected creative expression that passes the originality threshold. Second, the profile owner, may use the copyrights to prevent the copying of his DNA in any form, including cloning.



Only the first part of this argument might be true. DNA profile is probably copyrightable. However, the protection is then limited to the scope of the profile produced by the specific profiling method only. Therefore, if someone copies the exact DNA profile and publishes it, that action constitutes a violation of the specific profile. Nonetheless, a copyrighted DNA profile will not help much when the defendant uses a different profiling method to produce a profile retrieved from the same DNA. The DNA itself is an unprotected aspect of the author’s work, so if the defendant has expressed it in a different manner, using another identification method, that activity does not count as “copying” – at least not in the legal sense of the word. That conclusion is unavoidable due to the fact that a profile is just a formula that contains distinctive information about the person’s DNA, an identification key, but is not an ‘expression ‘ of it. 


In a human cloning case, the copyrighted DNA profile is even more
vulnerable. In cloning, the DNA is biologically copied from the clonee’s
cell in to an anucleated cell in a process called somatic cell nuclear
transfer.[15] When the cloner duplicates the genetic material, in no case
the profile is used or copied. Thus, no copyright infringement can be
argued. Further, the DNA profile includes only ‘marked’ repeating genetic fragments that are basically a tiny component within the whole DNA. Cloning on the other hand is a process in which the entire DNA is copied.



Asserting that alongside the biological duplication, a wrongful copy of the
registered DNA profile has occurred is also inconsistent with the copyright law standpoint to encouraging creativity by allowing free various expressions of an idea. It implies that once a certain DNA has been expressed in a profile, the owner may ban any other expression of the DNA itself, including biological expression. That would apparently be an overgenerous copyright monopoly. Say someone photographs himself, that photograph is copyrightable. But is that enough to prevent others from photographing, sculpturing, drawing or cloning him?



Copyright law is inappropriate in Cloning Cases

 
Human Cloning is a process of biological copying of an organism. The
traditional Copyright Act should not regulate this reproductive technology, unless the Congress explicitly amends copyright law to govern human cloning, as it did with computer programs.[16] The application of the current copyright law on cloning cases will lead to nothing but legal dissonance and absurdity. The following examples illustrate that danger:



A person is simply not the author of his genetic code, for one never creates his biological blueprint. Also, how can the author create a copyrighted work when he or she is not born yet? At most, a person’s progenitors are those who are responsible for the creation and therefore only they may be entitled to copyright their authorship. Further, both of the biological parents, as co-authors, must consent to the cloning. If the parents are the authors they may sell or license their copyright to a third party that may authorize the cloning himself. Can you imagine your parents selling your DNA copyrights to a cloning lab, against your will?



Suppose a person is the owner of his DNA copyrights, what will become of all the tissue banks? May the donors claim that the afterwards implanted tissue is copyrighted? May a sperm, egg or embryo donor retain the legal right to decide whether the newborn person shall be cloned? What about identical twins? Are they both the same “work of authorship” and copyright owners in a sense that one can allow the cloning of the other?



If you are unwillingly cloned, there is nothing you can really do to get rid
of your new living twin. Registered copyright is no help in such a case.
Even as legal remedy for money damages, copyright’s success is highly
doubtful. Human Cloning is too conceptually remote from the core nature of Copyright Law. It just doesn’t work when the ‘author’, ‘the work of
authorship’ and the ‘copy’ are one and the same.




Footnotes:



1 www.dnacopyright.com

2 U.S. Copyright Law 1976, U.S.C, title 17.

3 MICHAEL A. EPSTEIN, MODERN INTELLECTUAL PROPERTY, Ch 11, II, C 458-59 (2nd
ed. 1992).

4 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345
(1991)

5 Id.

6 Brandir International v. Cascade Pacific Lumber Co., 834 F.2d 1142 (2d
Cir. 1987) (no copyright in a type of bicycle rack).

[7] DNA sequencing is “The process of identifying the order in which chains
of repeating units of base pairs appear in DNA and identifying the order of
amino acids in proteins. Researchers label copies of a DNA sequence with
fluorescent markers, then run them through a sequencing machine. In
proteins, amino acids are removed one at a time from the end of a protein
and identified with an automated system.” CNN genetics glossary, June 2000,
at:
http://www.cnn.com/interactive/specials/0006/genome.glossary/glossary.html

8 DNA sequences used to produce music are probably copyrightable. See:
www.visionarymusic.com

[9] Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th
Cir. 1971); Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir.
1967).

10 John Moore v. The Regents of the University of California, Supreme Court
of California, decided July 9, 1990).

[11] http://www.forensic.to/webhome/dna/dna-typing.htm

[12] Human Genome Project, at: http://www.ornl.gov/hgmis/elsi/forensics.html

[13] See: http://www.forensic.to/webhome/dna/dna-typing.htm

[14] http://www.dnacopyright.com

[15] somatic cell nuclear transfer: A process whereby the nucleus of a
somatic cell is removed and placed into an enucleated oocyte (i.e. an egg
cell that has had its own nucleus i.e. all genetic information removed). The
net result is to have the genetic information from the donor nucleus in
control of the resulting cell. With further manipulation, such cells can be
induced to form embryos. This process was used to create the cloned sheep
"Dolly". http://www.geneticmedicine.org/gotit/s.html#sequencing

16 U.S.C. § 101 (1982).