Charting the Contours of a Copyright Regime Optimized for Engineered Genetic Code

There is a growing disconnect between the traditional patent-centric approach to protecting biotechnological innovation and the emerging intellectual property imperatives of “synthetic biology,” a promising new manifestation of biotechnology that enables the design and construction of artificial biological pathways, organisms or devices, as well as the redesign of existing natural biological systems. As explained in previous articles, one way to deal with this disconnect would be to expand the scope of copyrightable subject matter to encompass engineered genetic sequences, much in the way that copyright was expanded in the 1970s and 1980s to include computer programs. The present article expands upon that work and explores the possible contours of a copyright regime encompassing engineered genetic code (EGC), explaining how a policy-optimized application of existing copyright doctrine, facilitated perhaps by some relatively conservative amendments to the Copyright Statute, could provide synthetic biologists with a beneficial supplement to patents, while at the same time addressing legitimate concerns that have been raised in response to this proposal. The use of the term “EGC,” as opposed to “DNA,” is intended to focus the attention where it rightly belongs, i.e., on the information content encoded by a synthetic genetic sequence, and to make clear that I am in no way proposing that naturally-occurring DNA sequences should be copyrighted. It also highlights the close analogy between computer code and engineered DNA sequences. The article includes a description of a recent attempt to register an engineered genetic sequence as a copyrighted work with the U.S. Copyright Office