Common as Air: Revolution, Art, and Ownership

Book review: Common as Air: Revolution, Art, and Ownership.
Lewis Hyde; Farrar, Straus and Giroux, 2010,320 pages, $26 hardcover (ISBN: 978-0-374-22313-7)

By Kevin E. Noonan

Common as Air: Revolution, Art, and OwnershipWhether and how to protect intellectual property is a debate that spans centuries in the Western world. Now, cultural critic Lewis Hyde—author of “The Gift: How the Creative Spirit Transforms the World,” and “Trickster Makes This World: How Disruptive Imagination Creates Culture”—has written a book on intellectual property that purports to examine current practices in light of the principles the Founding Fathers espoused on copyright, and to a lesser extent patent.

The work, “Common as Air: Revolution, Art, and Ownership,” is a frustratingly erudite review of historical fact and philosophical positions taken by Thomas Jefferson, James Madison, John Adams, and particularly Benjamin Franklin regarding protections given to creative and inventive works.

With regard to patenting, Hyde’s book is limited to a discussion of biotechnology, and particularly protection of human genes. Here, many of Hyde’s ideas come from Nobel Laureate Sir John E. Sulston and his work—along with Georgina Ferry—“The Common Thread: A Story of Science, Politics, Ethics, and the Human Genome.” Sulston and Ferry’s book recounts the elucidation of the human genome by the public Human Genome Project and the private corporation Celera.

These separate efforts had the potential at the time for a divide to arise between public and private genomic information, and Sulston and Ferry’s book takes account of the concern that certain human gene sequences developed by the private effort would be undisclosed.

That fear turns out to have been unfounded, again because patenting requires disclosure, which in the case of a human gene includes the gene’s sequence and the putative amino acid sequence of the protein it encodes. (In addition, the U.S. and other countries required the applicant to identify the utility of the encoded protein, to prevent a “land grab” of sequences with no known biological activity.)

Thus, this genetic information is disclosed as part of the quid pro quo of the patent grant, and the information is freely available to be used “in common” by researchers, scientists, students, and anyone else. Patents protect against unauthorized commercial use, and even that restriction is limited to 20 years from patent filing (meaning that almost all human gene patents will expire by about 2020).

There is little evidence that protecting genes by patent has prevented basic research; indeed, every report looking for such inhibition has not found anything significant, and even for commercially exploited genes (such as the BRCA1 and BRCA2 breast cancer genes), there have been thousands of basic research papers published for work performed after the genes were patented.

Nonetheless, the Department of Justice ruled in November 2010 that human and other genes should not be eligible for patent protection because they are products of nature. “The U.S. has concluded that isolated but otherwise unaltered genomic DNA is not patent-eligible subject matter,” the department said.

Interestingly, but not discussed by Hyde, a modern equivalent to the types of royal monopolies opposed by the Founders in the 18th century exists today in those countries where the government is a necessary partner for commercial ventures, or where government-backed industry cartels have the power to decide whether an invention is commercialized, particularly one by a foreign inventor or company.

An analogy can also be drawn along these lines for situations where governments are empowered to abrogate patent rights or impose compulsory licenses for national “emergencies,” which has occurred with some sound justification for anti-AIDS drugs in some countries. However, in other cases governments have granted monopolies to local pharmaceutical companies for infringing activities concerning drugs for less exigent ailments (such as the anticoagulant Plavix, for example).

While existing under very different regimes and addressing very different circumstances, this type of governmental intrusion into intellectual property rights comes closest to the type of royal monopolies that the U.S. patent and copyright systems were designed to thwart.

Hyde raises more serious issues with copyrights than patents, particularly regarding expansion of the term of the right over the past several decades. While it is certainly within the power of Congress to provide such extensions, Hyde argues that Congress has changed copyright qualitatively as well as quantitatively, by increasing the capacity of a copyright holder to restrict access far longer than had previously been the case.

It is tempting to dismiss this complaint by noting that actual creativity, as opposed to mere copying, is the best way to circumvent copyright issues, but such an analysis is more facile than informative when applied to sampling and other forms of electronic reprocessing of creative expression that exist today.

However, while Hyde has a point that the film and recording industries have been particularly aggressive in getting out their antipiracy messages to students, fair use and other concepts that exempt copyright holders from restricting dissemination of their ideas for educational purposes are adequate as currently constituted (it being perfectly appropriate for copyright holders to remind students that unauthorized copying of films and music has financial and criminal penalties).

Hyde’s Common as Air: Revolution, Art, and Ownership book raises many important issues regarding intellectual property, particularly with regard to whether the copyright term is too long and whether modern means of expression, such as the Internet, make it prudent to review the scope of the restricted right. But none of these important issues avoids Hyde’s all-encompassing concept that ideas are a commons that need protecting from patents and copyright holders. For that reason, all his learned observations and arguments fail to convince.

Book review: Common as Air: Revolution, Art, and Ownership.
Source: Chemical & Engineering News Volume 89, Number 6; pp. 34-35.

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