Using copyright to protect genetic sequences

This universality means that, with some exceptions, a given DNA sequence will have the same function even in different organisms. What’s more, the method that we currently use to ‘read’ this code from DNA will then produce the same symbolic output (corresponding to the same function) for any given organism from which it is taken. The method that we use to read DNA, called genetic or nucleotide sequencing, is therefore a window through which we can access a common format.

Sequence data is produced as the end product of nucleotide sequencing—where a combination of biochemical, chemical, electrochemical and optical processes is used to ‘read’ DNA at the level of individual molecules. This information is then outputted as a sequence of symbols using a standard notation, with a letter code corresponding to one of the four possible molecules (bases) used. These bases form sequences that can then be abstracted and run through subsequent steps to identify and catalogue specific genetic subunits (a process known as annotation), as well as providing fodder for various other programs.

One of the intriguing aspects of this process of nucleotide sequencing is that the output is always in the form of a ‘raw’ sequence: a transcript of the relevant symbols representing individual bases. Any program used to analyse, model, simulate or manipulate genetic data will then use this standard format. This means that for a given piece of genetic material in the real world only a single corresponding sequence will exist to describe it. In this way, a genetic sequence can be seen as something akin to a print-out of a piece of computer code.

"‘Generic’ components (which would include a number of naturally-occurring and frequently-repeated motifs and elements) would not be considered when determining similarity."

Just as a piece of code can be protected under copyright law as a literary work until embodied, so too could a piece of DNA. What this potentially provides is an extra form of intellectual property protection tied directly to the process of developing a genetic sequence, as any party wishing to understand or modify an organism will have to produce some sort of sequence information in the process.

Hypothetical case study

Let’s suppose that a South African research group has developed a new type of DNA sequence. However, a competitor has obtained a sample of the DNA and rushes to release it into the market as a component of the company’s own product. The first group could now, in theory, indirectly attack this action by instituting a suit citing terms of section 23 of the South African Copyright Act 98 of 1978.

Assuming that it could satisfy the onus of proof as laid out in section
26, the plaintiff would then have access to the actions afforded to it by the act, including the option to demand a reasonable royalty or the destruction of the infringing material. Applying this logic, sequences of the two parties’ DNA sequences would be sufficient to demonstrate that infringement had occurred.

The use of copyright to protect gene sequences would also create a number of legal issues that would require further resolution. For infringement versus fair use, a decision on what constitutes ‘substantial’ similarity would be needed to set the appropriate boundaries. Here, the precedent provided by computer programs would seem to indicate that ‘generic’ components (which would include a number of naturally-occurring and frequently-repeated motifs and elements) would not be considered when determining similarity. Rather, it would be the inclusion of unique or original sequences (meaning ones that are not found in nature) that would set the standard.

When contemplating the advances made in molecular biology over the past few years, along with the ready parallel offered by computer sciences and electronics, it is apparent that numerous legal issues still remain to be resolved. The example of gene sequences and copyright serves to illustrate one potential manifestation of this issue.

Thomas Schmidt is a patent candidate attorney at  DM Kisch. He can be contacted at: thomass@dmkisch.com