Who Owns Life?
By Mark Feldbauer
Most journalists, especially freelance journalists, are familiar
with the wrinkles new technology can bring to the concept of copyright
and intellectual ownership. There has been, for example, furious
debate over who owns the electronic distribution rights to articles
originally written for print.
But a huge new grey area has opened up with the spread of Internet
technology. An awful lot of content - traditionally someone's intellectual
property - is available for download, re-transmission, alteration
and copying, 24 hours a day, free of charge. Imagine that it's your
life story that's being accessed in cyberspace. Or that Southam,
Inc. has copyrighted the word "media" and you can't use
it without permission. To some observers, that's roughly what's
going on in the expanding universe of biotechnology.
The debate over intellectual property rights in biotech is really
not that complex, but the ethical and moral issues raised cast doubt
on modern assumptions about the sanctity of life and our place in
the cosmos. The "wow" factor of what can be done with
the new technology is mind-boggling, more than a little scary, and
attracts its fair share of media attention. But answering the larger
question of what should be done with the shiny new tools biotechnology
provides is like being asked to play God, King Solomon and small
claims court judge all at once. It doesn't lend itself to short,
punchy prose or a 30-second stand-up.
The media is telling the biotechnology story in fits and starts
- test-tube skin, genetic cures for cancer or baldness, long-life
tomatoes and so on. Stories about Dolly the cloned sheep don't always
mention that the scientist who did it, Dr. Ian Wilmut, has filed
a patent claim on all animals, including humans, cloned using his
process. This amounts to staking a huge claim in the rush for "green
gold", as Jeremy Rifkin refers to genes in his book The
Biotech Century. Disney may have trademarked the name "Animal
Kingdom" for its latest theme park, but life sciences corporations
are going one better: they are patenting the entire animal and plant
kingdoms as fast as they can.
There are serious consequences for the global economy and society
if the gene pool can be patented, can become the intellectual property
of multinational corporations. A small number of companies, research
institutes and government laboratories could eventually hold patents
on all the 100,000 or so genes that form the blueprint for the human
race. Much as technology changed life for the journalist, allowing
digitization of words and images and impressive database mining
capabilities that gave rise to research-based reporting, the marriage
of computers and genetics is paving the way for exploitation of
an untapped resource.
Corporations are trying to exploit as much of that resource as
possible. The precedent was established more than 25 years ago when
a patent was first denied and then granted for a genetically-engineered
microorganism that could "eat" ocean oil spills. The US
Patents & Trademarks Office at first said that living creatures
were not patentable, but when the "inventors" appealed
to the Court of Customs and Patent Appeals, they won, the court
deciding that the micro-organism was more of a unique chemical composition
than a living thing.
The decision had huge implications which very few observers outside
the industry saw at the time. However, chemical, pharmaceutical,
agri-business and biotechnology companies intensified already vigorous
R&D efforts, staking claims on the global gene pool through
Since then, dozens of patents have been issued, especially in the
United States, for genetically engineered animals. Virtually the
only reason humans are excluded is the 13th Amendment prohibition
against slavery: one cannot "own" another person in any
In April 1998, the Federal Court disappointed Canadian biotechnology
companies with a ruling that genetically manipulated animals cannot
be patented in Canada. Harvard University had launched an appeal
to the Federal Court after being denied a Canadian patent for its
"onco-mouse" by the patent commissioner in 1996. This
was the first time a Canadian court had ruled on the patentability
of a higher life form. This mouse, the creation of Harvard biologist
Philip Leder, is licensed to Du Pont and sold as a tool for studying
Canada will now lose ground in important research areas, in this
case cancer prevention, because of this decision, according to biotech
companies. Patent protection is essential, they say, to mitigate
the financial risks in an industry where only one in 10,000 potential
products makes it to market, and the cost of commercializing that
product can reach $475 million. A patent at least lets investors
know that if they have bet on the right horse, no one is going to
steal the purse at the finish line. The intellectual property status
of a company -especially a small start-up firm - is seen as a key
to attracting the frequent infusions of money needed.
Canadian legislation on intellectual property is in line with current
international practices, generally allowing patent protection for
no less than 20 years. Last year's review of Bill C-91 focused on
pharmaceuticals, but had implications for all the life sciences.
That's because for many small to medium-sized biotechnology companies,
their main asset is their intellectual property. Original passage
of the bill in 1993 had a positive impact on research in Canada,
with both the major brand name pharmaceutical companies and the
makers of generic drugs increasing their research activity in this
There's no doubt corporations are scouring the globe for unique
genetic traits, modifying and patenting them in some cases before
knowing how they might be valuable. And because most of the world's
biodiversity is found in the Southern Hemisphere, while the know-how
to exploit it is found in the North, a battle is brewing over who
controls the "green gold."
Take the example of Madagascar. It is home to the rosy periwinkle,
a rare plant found in the tropical rain forest, and also to most
of the world's vanilla supply. Researchers found that the rosy periwinkle
had genes that could fight certain kinds of cancer. Eli Lilly developed
a drug based on those genetic traits, and now earns hundreds of
millions of dollars on sales of that drug, while Madagascar receives
Also, a method has been developed to grow vanilla (and many other
foodstuffs) in a test tube. It's not hard to see what this kind
of technology could do to the livelihood of peasants in Madagascar.
Biotech supporters argue that this same technology can guarantee
the world's food supply. Others say it has the potential to throw
the global agricultural economy out of whack by making certain crops
available in unlimited supply. Still others call this "biopiracy"
-- using research into unusual genes from plant, animal and even
human sources get control over indigenous genetic resources. By
slightly modifying that gene they reinforce control, and then earn
"obscene" profits, by patenting, goes the theory.
Arnold Slutsky, of the Samuel Lunenfeld Institute of Mount Sinai
Hospital in Toronto, offers another view (again, in The Biotech
Century): "If a journalist writes an article on a family,
and then wins a Pulitzer Prize, does he give the family a percentage
of his winnings?"
Many developing countries are unhappy about the way intellectual
property rights work in favour of the industrialized countries.
Giving global corporations monopoly ownership over food crops, as
is happening with basmati rice, for example, is more likely to threaten
sustainable food production and livelihood security than strengthen
There's no question knowledge-based industries like biotechnology
will be crucial to the strength of national economies in the next
century. But many observers see the need for more debate on the
conversion of the global gene pool to intellectual property and
allowing higher life forms to be patented changes the predominant
view of life itself - it becomes just another commercial commodity.
Mark Feldbauer is a communications consultant in the biotechnology
Published in Sources,
Number 42, Summer 1998.
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