Who Owns Your Clone?

A San Francisco firm thinks it's time people started copyrighting their DNA

Crump says that originally he wasn't even interested in copyrighting -- he was merely trying to think up a way to make sure everyone had ownership of his own DNA.

"I was looking at how you can stop it [cloning]," Crump recalls. "I asked myself, "Can you encrypt DNA?' No, you can't now, but you do have a legal remedy that can deter it based on existing law -- copyright. So we're setting a legal precedent. We're out there trailblazing because no one has considered the issue or the possibilities."

Concepts of individual rights also play into the institute's philosophical cause. "There should be an individual's right to legal remedy," asserts Matt Marca, the institute's lawyer. "If an individual is cloned right now, they have no right to go after the person that cloned them. Individual rights are not being addressed."

But legal experts think the institute's legal arguments are flawed. They doubt whether, under existing law, DNA can be copyrighted, and they question whether the institute's methods will meet technical standards.

The basis of the debate revolves around the U.S. Copyright Act, which "extends protection to original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

While Crump asserts that cloning is a new way to "reproduce" the "original work" of DNA, University of Minnesota law professor Dan Burk -- who has been writing about this issue for more than 10 years -- says there is a theoretical problem to that argument. "Copyright law covers original works of authorship -- that is, works that embody human creativity," he explains. "It does not cover facts or objects found in a state of nature. There is no reason to believe that an individual's genomic complement incorporates any "originality' or "creativity' as this is understood in copyright law."

Burk says the institute's method is also problematic because should the DNA profile -- "basically some black spots or smudges" -- be accepted for a copyright, the profile would be protected from reproduction, not necessarily the DNA itself.

"To the extent that copyright protects anything, it does so automatically, as soon as the work is fixed in a tangible medium," adds Burk, who teaches biotechnology, patent, and copyright law. "If an individual's DNA sequence could be protected by copyright, there would be no need for a service to do anything."

And in reality, the threat of human cloning is not yet immediate. "It's not very likely that anyone will soon have a reliable method for cloning healthy humans because the state of work in animals, as with Dolly the sheep, is still burdened by a low success rate," says Louis M. Guenin of Harvard Medical School. "So as merely a technical matter, it is going to be very difficult to produce a healthy human clone.

"In the short run, cloning of healthy humans is not likely to happen," Guenin says. "In the long run, you can imagine all these technical problems being solved, but it's not clear whether it will be permitted in the U.S."

While Crump and attorney Marca acknowledge the challenges their business faces, they remain bright about its possibilities.

"There are a lot of technological, legal, scientific, and ethical issues around this, but the only issue we are interested in addressing is the thought that you could not own your own DNA profile," Crump says.

"We expect resistance," Marca adds. "There's been resistance with every expansion, with computer software, and then with digital media."

But what, in the end, does the institute's work say about their faith in humanity? "It's our belief that even if there's a law against it, someone will try to do it," Marca says.

"We're pragmatic realists," Crump says. "Or pragmatic optimists. But we're not pessimists."

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