Copyright Protection of Biotechnology Works: Into the Dustbin of History?

Abstract

Starting in the early 1980s, and ending in the very beginning of the 1990s, a number of scholarly commentators proposed that biotechnology works are proper subject matter for copyright protection. Typically, these commentators focused on the idea that DNA sequences may be copyrightable works of authorship. Many commentators argued that copyrighting biotechnology might be a good idea because it would allow protection of works that would not qualify for patent protection. The idea of copyrighting biotechnology arose in the early 1980s at the time when patent protection of biotechnology seemed doubtful. Analogies of computer programs and DNA sequences were often made. The argument was that because DNA sequences are a type of biological computer program, and computer programs are copyrightable, then DNA sequences should also be copyrightable. Thus, to a number of commentators, the concept of copyrighting DNA sequences was an untapped and powerful alternative to patent protection. Nearly 20 years after the first proposal, this concept has seen little development. A review of the literature reveals neither cases nor statutes dealing with the issue, and the 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. This article explains the legal reasons why copyright protection for biotechnology works is either impermissible or of severely limited scope. In particular, this article will present the illustrative issue of copyright protection for DNA sequences engineered by scientists.