Whose ideas are they anyway: intellectual property in the information age

Whose ideas are they anyway: intellectual property in the information age

Linda Marsa

There’s an underground war being waged. But no hostages have been seized, no shots fired,. and no casualties sustained. This covert battle is over intellectual property rights, the obscure branch of the law that determines who owns and who profits from ideas. Yet the outcome of this bloodless struggle could condemn society to a Blade Runner future where a monolithic corporate state owns everything, from the deepest reaches of cyberspace to each base pair on the human genome.

“Billions of dollars are at stake in what is essentially the ephemeral, but enormously powerful, domain of human creativity,” says Fred Warshofsky, author of The Patent Wars. “That creativity, in the form of ideas, innovations, and inventions, has replaced gold, colonies, and raw materials as the new wealth of nations.” Advances in biotechnology – as well as in software development, in computer technology, and in the creation of the information superhighway – are testing the limits of our intellectual property laws, which govern patents, copyrights, trademarks, and trade secrets. These rules determine when an idea is so novel that it is patentable, and provide legal mechanisms for collecting the profits generated by this creative capital. Intellectual property is a hot topic right now because it’s part and parcel of the second industrial revolution we’re going through,” says Bruce A. Lehman, U.S. Commissioner of Patents and Trademarks. “Property has always been the essence of capitalism. The only difference is property is changing from tangible to intangible. Today, the only wealth there is in the world is the wealth that comes from the human mind.” In recognition of this, provisions for safeguards for intellectual property rights became a linchpin of U.S. endorsement of the General Agreement on Tariffs and Trade (GATT).

But there’s growing concern that the incredibly swift pace of technological development is fast outdistancing our delicately balanced legal system’s ability to protect the rights of artists and inventors, to give industry an incentive for innovation through patent protection, and, at the same time, to safeguard the public interest. The rapid proliferation of technology has become an unstoppable runaway train, and critics fear we’re hurtling at warp speed into a legal abyss. And it seems that the minute one problem gets resolved, a dozen more crop up. No wonder lyricist Hal David (“Promises, Promises”) lamented that artists have become “road kill on the information highway” because they have no protection against cyberthieves who appropriate their work.

What’s equally disturbing is that as the technology becomes more complex and the law increasingly esoteric, the victors in these undeclared wars may be those who can afford the heaviest artillery. “Large, powerful companies can bury their smaller opponents in a tidal wave of expensive litigation,” says Fred Warshofsky. These legal battles may create what Warshofsky calls “intellectual property cartels,” where behemoths like Microsoft and Intel erect interlocking hardware-software monopolies reminiscent of AT&T’s hammerlock on telecommunications prior to the breakup of Ma Bell.

As we construct the scaffolding of the information superhighway – which will have the capacity to transmit mountains of data at gigabit speeds – government policymakers, consumer watchdogs, telecommunications industry officials, creative people – artists, writers, musicians-and even librarians are attempting to formulate guidelines to determine who owns all those digitized bits of information. Their debates echo controversies that have split scientists into warring camps over patenting biotechnology products and DNA, the very essence of life. And the outcome of these seemingly are disputes may well de what the world will be I the next millennium.

This paradigm shift has it roots in a 1980 Supreme Court decision that changed pate law in the same way that Roe v. Wade forever altered the abortion debate. In a 5-4 decision, the Supreme Court agreed that scientific discoveries were indeed inventions, and that new life forms can be patented. Specifically, the Court ruled General Electric was entitled to own a new strain of bacteria devised in its New York labs to gobble up oil spills. It is ironic that only one vote changed the course of history, but this landmark ruling paved the way for patent protection for genetic engineering and allowed the burgeoning biotech industry to exploit the staggering commercial potential in the creation of new life forms.

Jeremy Rifkin, head of the Foundation on Economic Trends and a critic of the abuse and misuse of genetic engineering, was incensed. “Now, in the eyes of the law, a living creature is no different than a toaster oven or a computer,” he recalled, in a recent interview. He remembers predicting that “this decision will open up the floodgates for the commercialization of the gene pool, which inevitably leads to the patenting of life itself.”

At the time, Rifkin sounded like a raging fanatic. But he proved prophetic. A subsequent 1987 Supreme Court ruling extended patent protection to genetically altered animals. Then, in August 1993, the Rural Advancement Foundation International (RAFI) discovered the U.S. government had filed a patent on the cell line, which contains our entire genetic code, of an Indian woman from Panama who is stricken with leukemia.

This Guayami woman, like others in her tribe, carries a unique virus and antibodies that may be useful in combating AIDS and leukemia. There’s also a community in Africa’s Sudan that has a genetic resistance to malaria; inhabitants of Limone, Italy, harbor a gene that protects against heart disease; and some prostitutes in Nairobi may be immune to HIV Each of these unique genetic traits has obvious commercial value. But the idea of patenting these cell lines, which contain human DNA, the key to life itself, kicks up a hornet’s nest of legal and ethical issues – not the least of which is the specter of Americans plundering the DNA of Third World people. “The human genome is the common heritage of our species,” says Jonathan King, a biology professor at MIT. “The notion of granting patents on human cell lines is comparable to a corporation owning the oxygen in the air. We have numerous examples in history of what happens when you allow humans to be commodities – it’s called slavery.”

The patent application for the Guayami woman was dropped after strenuous protests by Panamanian officials. But that didn’t stop other U.S. government agencies from filing similar patents on cell lines from people in Papua New Guinea and the Solomon Islands. They think the controversy is utter nonsense. “This sensational talk about [using this technology] to clone human beings who will live their lives in servitude is garbage,” counters Patent Commissioner Bruce Lehman. “We’re talking about a technology that creates a biological invention – and patents are simply a commercial mechanism for people to get paid for their innovations.”

The 1980 Supreme Court ruling – dubbed the Chakrabarty decision after the General Electric scientist who concocted the oil-eating microbe – was probably inevitable, however, given the scientific revolution that had its genesis in 1972. That’s when Herbert Boyer of the University of California at San Francisco and Stanford’s Stanley Cohen, while wolfing down corned beef sandwiches on the patio of a Waikiki delicatessen, figured out a way of plucking a gene from one organism and patching it into the DNA of another. The hybrid organism they created would then churn out the substance ordered up by the implanted gene.

Gene splicing, as this technique came to be known, was the first fundamentally new drug-making approach in decades, and it equipped scientists with the tools to mine the world’s best pharmacopoeia for combating disease: the human immune system. Now drugs could be devised from bodily chemicals – precisely targeted therapeutics that were the Holy Grail of medicine.

Stanford University officials convinced Stanley Cohen to apply for a patent for this technique. Cohen and Boyer waived their own rights to royalties from the invention, which has since generated more than $20 million in royalties to Stanford and UC-San Francisco, but their fellow scientists were indignant. Hundreds of researchers working at dozens of institutions over three decades had contributed to the body of knowledge that led to this discovery. For two institutions to claim all the credit, not to mention millions in royalties, was unconscionable.

This has been the crux of many biotech patent disputes ever since. Science is an incremental process, with each advance built upon the bricks of the last. So when is a discovery such a quantum leap forward that it qualifies as a patentable invention? That was the central issue in the more recent skirmish between DuPont and Cetus over the rights to Polymerase Chain Reaction (PCR). Devised by Kary Mullis while he worked at Cetus, PCR is a simple process to amplify even the tiniest bits of DNA. This technique revolutionized genetic research, spawned a billion-dollar industry, earned Mullis a Nobel prize, and was a source of much debate and contention in the recent O. J. Simpson trial.

DuPont’s challenge to Cetus’s PCR patent was based on papers published in the early 1970s by Nobel laureate Har Gobind Khorana, who was then at MIT, which discussed possible methods of synthesizing multiple copies of small strands of DNA. “Cetus’ contention was Mullis took elements that already existed in biology, like the polymerase enzyme that can copy DNA, and saw that they could be turned into a powerful new tool to exponentially amplify DNA,” explains Paul Rabinow, a University of California at Berkeley anthropologist and author of an upcoming book on PCR’s history.

U.S. patent law rejects patent claims if a description of the invention was published more than one year before the patent application was filed. If the court held that Khorana’s work did, in fact, outline a method for using an enzyme to amplify DNA, that would mean the idea for PCR was in the public domain. But when Mullis took the stand in the 1991 court battle, jurors were enthralled by the folksy Southernbred scientist, as he spun out the tale of how the concept behind PCR came to him in a blinding flash during a midnight drive up the northern California coast in the spring of 1983. He convinced the six-member panel that PCR was indeed the product of his – and only his – fevered imagination.

Kary Mullis’s creation of the PCR technique was obviously a conceptual breakthrough. But in other instances, how key a role an individual scientist has played in unearthing something new is not quite so clear-cut. That question was at the heart of the controversy that erupted in 1991 when the National Institutes of Health applied for patents on nearly 3,000 gene fragments discovered in the labs of one of its biochemists, J. Craig Venter, who had devised an ultrafast, automated method of gene sequencing. “There was a mother lode of information, some part of which will have phenomenal commercial potential,” explains Reid Adler, a Washington attorney who was then head of the NIH’s Office of Technology Transfer. “We wanted to keep options open because no one had thought about how to best transfer this technology. Once data is published, it loses novelty and it is difficult to patent.”

But again, scientists were outraged. Patenting genes is now commonplace, but usually after their utility is determined, whether they code for blue eyes, or colon cancer. The function of the bits of DNA the NIH proposed patenting wasn’t known, and some scientists dismissed Venter’s discovery as nothing more than using DNA sequencers as giant biotech copy machines. Deciphering the gene’s secrets is the real grunt work of biomedicine. Researchers feared that in the future, companies that own a library of gene fragments could lay claim on a gene after scientists had done all the hard bench work of figuring out what the genes actually do. James Watson, for one, co-discoverer of the double-helix structure of DNA and then director of the NIH’s Human Genome Project, denounced the policy as “idiotic” and destructive to research, the genome project, and international relations.

The NIH, under its new director Harold Varmus, a Nobel prize-winning virologist, has since retreated from its stance on patenting gene fragments. And in the wake of the ensuing furor, Craig Venter left the NIH to direct the Institute for Genomic Research, which is connected with Human Genome Sciences, a biotech bankrolled by $70 million in venture capital dollars. “Scientists are the ultimate prostitutes,” Craig Venter told reporters at the 1994 Human Genome Project Conference. “We have to get money where we can in order to do what we want.”

Ironically, the NIH found itself on the other side when a similar squabble over what constitutes inventorship erupted in October 1994 when Myriad Genetics, a Salt Lake City biotech, and the University of Utah filed a patent application for the BRCA1 breast cancer gene – and excluded their NIH collaborators. The discovery of a gene that was a marker for breast cancer made headlines and offered new hope for thousands of anxious women with a strong familial history of breast cancer. Soon it would be possible to find out if they carried this gene.

The University of Utah team was led by Mark Skolnick, a former NIH researcher who migrated to the largely Mormon state because it was the perfect laboratory for genetic studies. It had a relatively homogeneous population, and elders of the Mormon Church kept meticulous genealogy records dating back more than ten generations. So it made immeasurably easier the job of tracking clusters of familial breast cancer, and then zeroing in on the common aberrant gene.

But the normally unflappable NIH Director Harold Varmus was angry about the flagrant disregard of the significant role played by the NIH in identifying this gene. “This discovery is the result of the arduous and scientifically challenging work of over 40 researchers at several institutions,” he wrote in a scathing letter to Congressman Ron Wyden, who was then chair of a congressional subcommittee that monitors cooperative agreements between academia and industry. Varmus went on to warn that “omission from a patent application of a true inventor could render” the patent invalid. The patent on a test for a predisposition to a cancer that strikes one in nine American women could be worth millions. This bitter dispute was settled in February 1995 when the University of Utah-Myriad Genetics team added the NIH’s researchers to the patent application, and awarded the government 25 percent of potential royalties.

The Internet, the nexus of a growing matrix of global computer networks, is in the nascent stages of a transformation that parallels what occurred in molecular biology at the dawn of the genetic age. The emphasis, however, is more on copyright than patent protection (though scientologists are also questioning what constitutes libel in a digital world). Some worry that the computer network will follow the same path as biotechnology, where many feel the probusiness, antiregulatory Reagan-Bush administrations gave away the store and did little to protect taxpayers’ interests. But others believe it’s an exercise in futility to protect copyright in a digital world.

The Internet, originally devised by the Pentagon in 1969 to safeguard the flow of military information in the event of a nuclear attack, links the nation’s intellectual elite at universities, research centers, and government agencies, and provides a subsidized playpen for computer enthusiasts. But now that government funding is drying up, the Net must become self-supporting. Commercialism, which clashes with the Sixties-style countercultural ethic of cyberspace, hag invaded this electronic Eden.

“The Internet is going through severe growing pains,” says Anne Branscomb, scholar in residence at the Harvard University Program on Information Resources Policy. “People who come from the sharing tradition are very upset when people assert proprietery rights on information posted on the Internet.”

When Paramount Pictures, for one, discovered that computer files containing audio and video bits from the Star Trek television series could be downloaded for free by America Online customers, the studio cried foul – and the online service scurried to erase the offending files in order to avoid further copyright infringements. “All you need is one big case to get everybody running scared,” observes Dan L. Burk, a law professor at Seton Hall University in New Jersey.

But copyright law is complex – and tricky to interpret. “Copyright is a strange duck,” says Burk. “It’s the only place in the law where we condone or encourage restrictions on the flow of information, putting it in some tension with the First Amendment [which guarantees freedom of expression]. That’s why we have safety valves like fair use.”

But how do you draw the line between fair use and copyright violations in a digital age where information can be copied, sent, or altered with a few keystrokes? And how do you erect toll booths at various electronic gateways to the Internet while still ensuring continued public access?

The Working Group on Intellectual Property Rights, a government panel with representatives from 20 federal agencies, has attempted to answer these questions and to hammer out reforms to the Copyright Act to protect the interests of both users and producers of electronic materials. The group is part of a task force convened by the Clinton administration to implement the National Information Infrastructure (NII). Their final report, which was released in September 1995, has served as the spring-board for forthcoming legislation; the report may have the same impact on cyberspace as the Chakrabarty decision had on biotechnology.

The proposal says any digital transmission of copyrighted work should be considered infringement. But critics contend this sweeping mandate is based on obsolete concepts of intellectual property – where original works like books, films, records, and paintings could be contained in a neat package – that don’t reflect twenty-first century realities, They also believe this radically tilts the balance of power in favor of the publishers, and that Draconian controls on electronic dissemination of information could turn millions of E-mail users into criminals. “The report assumes that increasing enforcement will protect copyright on the Net,” says Mike Godwin, staff counsel for the Electronic Frontiers Foundation, a civil liberties group launched by Lotus founder Mitch Kapor. “But the last thing we want is a law that felonizes what people are doing in their living rooms.” Adds Prudence S. Adler, assistant executive director of the Association of Research Libraries, “We’re trying to develop some alternative cost recovery schemes”-aside from the pay per use of copyright – “that don’t interfere with public access.”

It may be tough to enforce stricter rules in the electronic realm, though. Some music industry trade groups like ASCAP and BMI routinely deploy spies to discos, radio stations, and even aerobics studios, to ensure song royalties are paid. And Microsoft and other software makers, says Fred Warshofsky, “have formed alliances such as the Software Publisher’s Association (SPA) and the Business Software Alliance (BSA) that have over the past several years made a number of highly publicized raids on companies looking for illegal copies of computer programs.” But dispatching cybercops to patrol the electronic frontier for copyright violators seems wildly impractical. How do you police the millions of computer users who can make instantaneous copies with a keystroke? A better solution might be along the lines of the compromise reached by VCR-makers and movie producers, who recognized the impossibility of halting illicit taping. VCR firms pay into a royalty pool – these payments are added in to the VCRs’ cost – which is distributed to the motion picture producers association.

What’s more, emerging nations in the Pacific Rim like Korea, Malaysia, Singapore, and Taiwan and in Latin American countries such as Brazil and Argentina, don’t recognize discoveries or inventions as private property. Instead, they’ve beefed up their economies by copying, adapting, or simply stealing technology, in government-sanctioned ripoffs called “free riding.” In the future, developing nations may become electronic havens in cyberspace for intellectual property plunderers, a Cayman Islands for data thieves akin to what author Bruce Sterling envisioned in his futuristic cautionary tale, Islands in the Net.

“That’s why it’s so important to get a global consensus,” says Pamela Samuelson, a professor of law at the University of Pittsburgh Law School. “It doesn’t make any sense to try to solve problems domestically if everyone can log on to off-shore sites.” In fact, provisions in GATT are designed to circumvent situations like this. The 1 1 6 nations in the trade pact have agreed to uniform rules regarding protection of patents, copyrights, trade secrets, and trademarks in all fields of technology, ranging from electronics and information technologies to biotechnology and pharmaceuticals. Poachers will be hit with stringent sanctions.

An eleventh-hour intellectual property agreement reached between the United States and China in February 1995 narrowly averted an all-out trade war. American officials were ready to impose exorbitant tariffs on Chinese imports and block China’s admittance to the newly formed World Trade Organization, which Beijing bureaucrats believe is a prerequisite to modernizing their economy. At stake was nearly $3 billion worth of sales American companies lost each year because of the theft of intellectual property in China, where a thriving black market did a brisk business in pirated U.S. goods – ranging from CDs, laser disks, video games, movies, and software to counterfeit copies of jackets bearing the names of professional sports teams.

But while the Clinton administration boasted about its great victory with the recalcitrant Chinese, many privately wonder how vigorously the Beijing government will pursue violators.

Indeed, the world may be getting wired, but the law lags far behind the technology. It may be several years before we understand how to devise sensible mechanisms for protecting the fruits of our imagination. “It’s still the Wild, Wild West on the electronic frontier,” observes Burk, with bandits lurking on highway shoulders and cybersheriffs dispensing vigilante justice. But one thing is certain: With brain power becoming such a coveted currency, the twenty-first century will witness the real revenge of the “nerds” and Nobel laureates may-finally-command bigger bucks than NFL running backs.

COPYRIGHT 1995 Omni Publications International Ltd.

COPYRIGHT 2004 Gale Group