Author of The Gift and Trickster Makes the World; poet, essayist, Kenyon College professor.
The human genome was discovered, not invented. It makes no sense to patent the stuff of life.
| by Lewis Hyde
Why should knowledge about the human genome be treated as a commons and not as a property that those who develop it might own? After all, it takes time, money, expertise, and hard work to create this knowledge; shouldn’t these be rewarded? And wouldn’t the promise of reward provide an incentive that might speed the work up, and target it toward useful ends?
I have been thinking about these questions as I read The Common Thread, John Sulston’s account of his part in the public project that sequenced the genome. Sulston is a “commoner,” as his title indicates, and his book provides a nuanced defense of treating knowledge of the genome as a commons.
To begin with, Sulston reminds us that the genome is a part of nature, of the given world, and that knowledge about it is discovered, not invented. In the history of intellectual property, and in patent law particularly, there is a long tradition whereby the things we discover about the natural world cannot be owned.
You can’t own the speed of light, even if you were the first to figure out what it is. An invention based on the speed of light, however, that you may own.
“It seems to me that your fencing-off of a gene should be confined strictly to an application that you are working on — to an inventive step. I, or someone else, may want to work on an alternative application, and so need to have access to the gene as well. I can’t go away and invent a human gene. So all the discovered part of genes…needs to be kept pre-competitive and free of property rights.”
Sulston’s implied distinction between the competitive and the pre-competitive suggests a second reason to treat the genome as a commons. With something as basic and pervasive as the human genome, asking that we choose between a private or common property regime sets up a false or premature dichotomy. Just as public roads and waterways provide an infrastructure out of which markets may grow, so publicly available knowledge about the genome allows for a variety of uses, many of them commercial.
There is an analogy here to the protocols by which the World Wide Web operates: where the protocols are common knowledge and cannot be taken private, commerce flourishes; where they are proprietary, commerce hesitates. If you want a lively commerce arising from our understanding of the genome, treat it as a commons.
A third reason to treat the genome as a commons arises from the nature of the undertaking itself. DNA is not a simple substance. “In every cell of your body you have two meters of the stuff,” Sulston writes. If you made a scaled-up model with the DNA from each cell as thick as a sewing thread, your model would be 200 kilometers long. To develop knowledge about something as staggeringly complex as that requires an institutional structure allowing for collaboration and group intelligence.
Sulston writes of one part of the undertaking: “The chromosome 22 sequencing project was an excellent example of the Human Genome Project in miniature. The Sanger Centre [in England] carried out over two-thirds of the sequencing, in collaboration with Bob Waterston’s lab in St. Louis, Nobuyoshi Shimizu at Keio University in Tokyo and Bruce Roe at the University of Oklahoma. Five other institutions in the United States, Canada and Sweden had worked on the mapping phase.”
This kind of work needs open channels of communication so that new information can be spread and integrated rapidly. It has long been the understanding in science that common property regimes are the best way to organize such an undertaking.
It may seem intuitively true that the genome should not be owned by anyone, but Sulston’s book nicely informs the intuition. He reminds us that we have a long tradition in which the givens of the natural world are treated as commons, and that the genome is one of these. He shows that commons and commerce need not be at odds, that one can feed the other. And the complexity of the tale he has to tell itself makes a fine empirical proof of the wisdom of common property regimes in science.