DNA Copyright Lecture
by David Lindsay
Delivered at the Science, Industry and Business Library
The New York Public Library, April 5, 2001
I want to thank those of you here who came after getting the announcement for this lecture by e-mail. In accidentally asking you to come here in the year twenty thousand and one, I have put undue strain on your time travel equipment.
I also want to thank those of you who came here after hearing about this lecture through other channels--and to beg your indulgence as we go off in a rather unexpected direction.
The posters and news announcements say Im going to talk about everyday objects that can be found around the house--pencils, paper clips, nail clippers. My own description, to friends and others, offered something a little different from that. Fortunately, it takes very little effort to resolve the contradiction between the two.
This building contains copies of every invention ever patented in the United States. Most of these patents reflect the time-honored concept of invention. They describe objects that can be manufactured, either by human hands or by tools. That has been the story of invention ever since the early hominids started pounding at the bones of carcasses with sharp rocks in order to get at the marrow inside. In recent years, however, the Patent Office, and thus this building, has begun to fill up with patents on human genes. With the decoding of the entire human genome, we can expect it to be only a matter of time before every human gene has been claimed as a form of intellectual property.
The most common invention around the house, as it turns out, is the person living in it.
This invention--the human genome--is the one Id like to talk about today. I would also like to invite anyone to cut in whenever they feel the urge: we all brought our human genomes with us today, so it seems only right to allow this lecture to become a discussion at anyones bidding.
I first began thinking seriously about the human genome about eight years ago. I had just started writing my column for New York Press, The Patent Files, and was ranging around for interesting subjects to cover. It was clear to me then that a lot of activity was taking place in the realm of genetics. Perhaps the most startling news was that a man named Craig Venter was attempting to patent a large percentage--I recall something on the order of 30 percent--of all human genes. With a number that large, I wondered what the problem might be with going for 100 percent. Hadnt the experts always told us, after all, that, except in the case of identical twins, each persons DNA is unique? What would it take, I asked myself, if I wanted to patent myself?
The answer turned out to be much more revealing than I expected.
After I wrote my first article on this subject, in which I declared my modest hope that I would be able to own my physical person, I received a letter from the Fluxus artist Larry Miller, in which he described his own explorations along this line. He had been copyrighting the DNA of various humans since the late 80s, as both a performance art piece and a challenge to the existing way of doing things.
I met with Larry at his apartment and conducted a very pleasant interview with him, after which he had me place my hand on the New York City phonebook and swear that I had never been genetically altered. He then gave me a certificate of copyright for my own DNA. This certificate is still hanging in my office today.
It was because of this conversation with Larry that I began my adventure--my thought experiment, I should say--in earnest. Like him I was interested in the entire question of DNA as intellectual property. But I was also curious to know what would happen if I were actually to apply for ownership of my DNA--all of it--through the existing legal channels.
Not that I believe my genes to be any better than anyone elses. On the contrary. The question in my mind was, and remains, what are the rights of any person to their own genetic material? In that sense, my thought experiment applies equally to any person in this room.
If someone decided that they wanted to clone you--for whatever reason--what say would you have in the matter? Alternately, if someone wanted to get rich off your immunity to some rare disease, would you be entitled to some compensation? So far, the courts have decided no to every plaintiff who has brought such a case. Then again, is the very idea of ones own DNA as a commodity too horrible to contemplate, or should it be faced as an inevitability and dealt with accordingly?
The question goes to the heart of what human life is supposed to be: is it a gift, or is it a good to be bought and sold?
As Larry pointed out, there are good reasons to consider DNA as material for copyrighting rather than patenting. The difference between the two has become less easy to see these days, but essentially a patent covers an object that functions in a new way, or a new way of making that object, while a copyright covers creative expressions that are fixed in forms already known. A patent, for example, might be granted for a new way of binding a book, while a copyright would cover the contents of the book, regardless of how the physical object was made.
In the realm of genetics, these distinctions quickly become confused. To get a patent on genetic material, for example, it is not always necessary to alter that genetic material in any way. It is enough in some cases that the inventor has used his expertise to determine that this particular stretch of the genome related to a specific gene. In other words, if a scientist is smart enough to know that certain genetic material hidden in the vast wilderness of the double helix is worth targeting, he may qualify for a patent on it.
This line of reasoning has its history and is well established by legal precedent. However, each step along the way, while minor itself, has made the overall situation somewhat incoherent. And it is here that copyrighting can throw some light on the subject.
Another technical explanation. DNA as a material is vanishingly small. Scientists can do little with a scrap of hair as it is. To get genetic information from a body sample, it is necessary to use a technique invented by Nobel prizewinner Kary Mullis called PCR. This technique takes a piece of DNA and copies it, until there is enough of it to be visible or otherwise recognizable with the use of technological aids.
The key word here is, of course, copying. If DNA has to be copied in order to be manipulated, or even to be identified, then the moment of copying can be considered the critical phase in which ownership--if any ownership can in fact be claimed--is violated. The problem can be seen as identical to that of a musical recording. If I buy a CD and listen to it, there is no infringement. I only infringe on intellectual property rights if I make a copy of that CD. This, clearly, is a question of not patenting but of copyright. And by extension, one could make the argument that DNA follows the same principle.
Aside from this elegant parallel, there is another reason for thinking of DNA in terms of copyright. A patent, even a simple one, typically costs the inventor thousands of dollars. To apply for a copyright, on the other hand, costs a mere $30. If one supposes that anyone should be entitled to ownership of their own DNA, then an expense of $30 is almost reasonable, while the cost of a patent begins to look like voluntary extortion. Copyright assumes the right of almost anyone to confirm ownership of their own genetic makeup.
Having thought this through and finding myself in agreement with Larry, I forthwith requested a copyright application form from the Register of Copyrights in Washington. [Exhibit A:]
This application immediately presented me with several problems. The first of these was the question of category. Copyright law, as it has evolved, has come to recognize creative expression within certain limits. One cannot, for example, copyright an idea. If I wanted to copyright a theory about the causes of a certain disease, the application would be dismissed out of hand. One must copyright a specific work.
One must also declare what category that work falls into, and these categories have been fixed over time. Thus, I was forced to consider my DNA in a way that I never had before. Was it a form of theater? Was it a sculpture? A piece of music?
The standard analogy used for genetics is that of writing. The genome is described as the book of books, as an encyclopedia, and so on, with the chromosomes representing volumes, the genes representing words, and the actual base pairs--the smallest chemical units, which are commonly represented by the letter G, A, T and C--representing letters. There is a certain power to this analogy that cannot be denied. However, on a strict copyright basis, it does not stand up to scrutiny. Sequences of amino acids are not letters in a book; to say so is to redefine writing altogether.
I considered the category of sculpture, but that did not get me very far, either. DNA is coiled in a double helix, which in turn is coiled again small knots, and the entirety bunched up as it fits, so to speak, in a very small space inside the cell. The motion of this material as it floats around or goes through its various activities is not unique to an individual but simply a matter of physical forces of the moment. The way the wind blows through the branches of a tree does not really identify that tree as a unique event in the universe.
Theater as a category had its problems too. One could argue that ones DNA enacts a performance whenever it replicates or produces proteins, but this opens the gate to interpretations of psychological behavior that have yet to be determined. Is DNA the script for every action I take--for every action you take--in life? Nobody knows. At least not yet.
In the end, the most compelling interpretation was to consider DNA as a form of music. Indeed, others had arrived at this conclusion before me. Several people, including some musicians, have put forward the argument that the four chemicals that make up those tiny base pairs-- represented by the letters G, A, T and C--has its own unique frequency. By determining those frequencies, one could theoretically assign them an equivalent musical tone. The sequence of the base pairs in ones own DNA could then be rendered as a sequence of tones: a piece of music.
Unfortunately, the frequencies of the base pairs are not really predictable enough to be called a unique piece of music. The tones would come out as unpredictable noises. Nor can one say what the sequence would be, since by this definition all of the base pairs are vibrating all the time. The result by this definition would be one gigantic cacophony that cannot be differentiated from the cacophony of another persons DNA.
There is another way to describe DNA in terms of music, however, which I used in my copyright. I will get to this interpretation in a few minutes. For the moment, suffice it to say that I solemnly entered the words musical work in the space left for me to declare my category.
My next task was to tell the Register of Copyrights who the author of this work was. Obviously, this was not me but my parents, who created the unique sequence of my DNA (I have no twin brother) at the moment they conceived me. There was also a space in which I was asked to describe any previous works upon which the present one was based. In this space, I wrote that the work was based on the DNA of my parents, which was based on their DNA of their parents, and so on. Essentially, the work, as I saw it, was based on my family tree--furnishable on request.
Copyright applications also allow someone other than the authors to assert a right to the work in question. This person is called the claimant. I put down my own name in this space. Asked to explain the means by which the rights had reverted to me, I invoked the 13th Amendment, which prohibits the enslavement of one person by another. (More on this in a minute too.)
Finally, I was asked to submit a deposit material along with the application. Typically, this would be a copy of a manuscript or a cassette tape--whatever form in which the work can be fixed. For this, I chose a fingernail clipping, on the reasoning that it contained complete copies of my DNA, which I had made myself in the course of eating, breathing, sleeping and all the rest. I then wrote out a check, sent off my application and waited.
After some months, I received this response from the copyright examiner -- Exhibit B. Of course, the examiner rejected my claims. I fully expected him to do so. On the other hand, he explained in his letter the reasons for his rejection, which I found less than compelling. In turning me down, he only roused my curiosity more, and sent my thought experiment on an extra expedition.
For example, he wrote that the acoustical phenomena in my fingernail, even if they could be excited into vibrations do not meet the definition of copyrightable material because they would not be original and creative products of human authorship.
In the following paragraph, the examiner--who was, one must admit, very tolerant of me--wrote that a copyrightable work represents conscious, intentional expressions of the mind.
The examiner was telling me, among other things, that a persons DNA is random. I thought about this for a while, and recalled that there have been several famous examples of creative expression that relied on randomization. The most obvious case was that of William Burroughs, a writer who used what he called a cut-up technique in his work: he would intentionally scramble passages of text he had written to create an unexpected result.
Burroughss work seemed to contradict to the examiners argument--and to match mine fairly well. All the more so when you consider that he co-wrote a book with Brion Gysin called The Third Mind, in which both of their writings were mingled. Two authors mixing their words to create an unexpected result--how did that differ substantially, in terms of intention and originality, from two humans mixing their DNA to create a new genome?
I contacted Burroughs--this was in 1995, not long before he died--and asked if he had ever had any trouble copyrighting his avowedly randomized writings. His secretary responded to by fax with the following--Exhibit C--in which Burroughs confirmed that his copyrights had always been granted.
The examiner had also called into question the vibrational nature of DNA. This was a good point, and I thought long and hard about it. Strictly speaking, I moved to a different attack. Rather than describing how DNA vibrates to make music, I realized that DNA makes music in the act of copying itself. You will have to accept my apologies as I embark on another--my last!--abstruse technical explanation here.
DNA is composed in what is called a double helix--two spirals, along with there are the basic chemicals of which it is made, those Gs, A, Ts, and Cs. Whenever a new cell in the body is created, that cell needs its own copy of the DNA. It gets this DNA by the process of replication: the two spirals in the existing DNA separate from each other. These spirals, each of which is for the moment a single helix, then interacts with the chemicals surrounding them, until a new spiral forms and becomes connected to them. Now there are two complete double helices where there once was one. The genome has copied itself.
The important moment for me was the moment when the two spirals separated. The spirals are held together by hydrogen bonds: for one set of base pairs, there are two hydrogen bonds, for the other, there are three hydrogen bonds. Thus along the entire length of the genome, there are sets of these bonds, something like the rungs of a ladder, which appear in either a series of two (followed by a gap) or by a series of three, also followed by a gap.
When the two spirals separate, then, these hydrogen bonds must be snapped in a specific rhythm. Two beats, rest, three beats, rest, three beats, rest...and so on, according the specific sequence of base pairs that are unique to the individual. In other words, one can argue with some conviction that each persons genome copies itself according to a unique rhythm.
Well... in fact, I had another complication to consider as far as the musicality of my work is concerned, which is: the peculiarities by which the double helix splits apart. When the two spirals separate during replication, they do not always separate at the same point. Furthermore, the separation goes in both directions, much as the seal on a bag of potato chips opens in both directions when you pull it from the center.
Again I began thinking of precedents. Had any musical composer, I wondered, ever copyrighted a musical work based on these principles?
Oddly enough, the answer is yes. I contacted a friend, the composer and musician Elliott Sharp and explained my dilemma. He pointed me to the work of Earle Brown, and a trip to the library confirmed it: Brown has composed works in which series of notes can be played beginning at any point in the sequence, forwards or backwards, at any speed desired. Strictly as a formality, I checked further and learned that Brown had received a copyright for such works.
The examiner had one other major problem for me. Copyright cannot be transferred from the author to the claimant without some written documentation of that fact. Although the examiner was in no way encouraging, I took this as my cue to call my my mother on the phone.
We started out with the usual small-talk. Finally I decided to cut right in. I explained the situation as best as I could and asked my mother what she thought. After a brief silence, she asked me a question that got close enough to the heart of the matter. Does that mean youre my slave? she asked.
I said I thought so, but didnt belabor the point. I also had to know, for my own sake, to be honest, as much as for the copyright examiner, whether she and my father (who was no longer living) had conceived me with conscious intent.
I could hear her blushing when she said yes.
Now the sympathies had swung my way: Would she be willing, I asked, to sign a document stating that she had transferred the right to copy my DNA over to me? She said she would. And so it was that we ended up at a notary public in Ridgewood, New Jersey, who otherwise was running a brisk business in dry cleaning, brandishing a piece of piece of paper with the title, in caps, TRANSFER OF THE GENETIC CODE OF DAVID ALLEN LINDSAY. He did a bit of a double-take, stamped it, collected our money, then turned his attention (rather suddenly I thought) to a man in need of cleaner suit. Only then did I realize the date: April 1.
Of course it will not do to define every child as a slave to its parents. but the question does remain: who is responsible for ensuring the healthy copying of an individuals cells? This matter has already been worked out in the legal arena: responsibility for the welfare of a child falls to the parents until the child ceases to be a minor. All that is necessary is to translate these existing laws into genetic language, which simply means defining welfare as the conditions that provide for the copying of genetic material whenever new cells are needed--and not past that point. In the genetic age, the rite of passage into adulthood could be marked by the transfer of the responsibility, and with it the rights to ones genetic material.
There were other questions that arose from this line of reasoning. What about children conceived by accident, for example? I surmised that once a woman is pregnant, the continuation of the pregnancy should be considered a matter of conscious intent--the opposite case, after all, would be an abortion. As for the question of rape, one could argue that, according to some state laws, a criminal is not allowed to benefit from his crime. These laws could be expanded in some futuristic age (such as the one in which this lecture was advertised).
Having covered every angle I could think of, I again filled out my forms and sealed up a fingernail clipping, and again I awaited a response. The answer this time was more unequivocal: There is no basis, the examiner wrote, on which we will accept your application. This flat refusal did not scare me, but I was finally hung on a technicality. When copyrighting, it is not necessary to apply for copyright at the moment of creation--you can always do that later. But, as the examiner pointed out, you must affix a letter c with a circle around on the work, with the date, when it is first created. There was no way I could argue this point, and with that my effort to copyright my DNA came to an end.
My thought experiment, however, continues. Society has not reconciled the right to ownership of ones own person with the right of free enterprise. More than ever these two forces are headed for a collision course. If I have contributed anything to a solution, it is to define the nature of the fundamental rights and responsibilities of a human in the genetic age, that is, to regulate the copying of his or her DNA.
In fact, leaving aside the entire question of DNA sampling, this points to a fairly good definition of ones minimum purpose on earth. We can say that we are not alive because we have jobs. We are alive because we were born, and past a certain age it is incumbent on each of us to promote the optimum rate of copying our DNA. Our real job, in other words, is to handle the genetic clock we have been given.
This definition allows for altruism, because it is based on the idea that ones DNA is originally a gift. You and I can only be claimants in the copyright game, and so only can our children be, and their children. We receive genetic material that takes us through something that we call a life. What are we going to do with that gift? How are we going to honor it?
I came here tonight feeling nervous, as many people do before delivering a lecture. My anxiety, Im sure, produced a fair amount of new cells in the form of adrenaline, not to mention a few antibodies, alerted by my level of stress to possible viral invasions. These new cells were something I expected, with the understanding that their creation might lead to further benefits for me in the art of living. And of course, I can only hope that they might be of benefit to you too.
Going on the assumption that this goal is more easily met when ideas are exchanged, I would like to thank you all for listening to me tonight, and to open the floor to discussion.