Can I copyright creation? The United States Supreme Court effectively decided in 1980 that you can in fact copyright creation.
In Diamond v. Chakrabarty, the court decided live organisms all count as private property to be copyrighted and patented. The supreme court decided that genetically modified organisms could be patented, but it also went beyond that to allow for patenting of life organisms (or parts of live organisms) discovered by not created (a little known fact that has great implications for medical research….). Thus transnational agriculture giant, Monsanto’s global power solidified and they have since claimed and enforced a patent without end on their genetically modified seed. Court cases in the United States and Canada have seemingly enshrined Monsanto’s argument that their right to control their property trumps all. This unending and unbounded right may yet be reigned in as Indiana farmer, Hugh Bowman’s legal challenge of Monsanto’s patent rights comes before the Supreme Court.
At stake in Mr. Bowman’s case is whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products. It is one of two cases before the Supreme Court related to the patenting of living organisms, a practice that has helped give rise to the biotechnology industry but which critics have long considered immoral. The other case, involving a breast cancer risk test from Myriad Genetics, will determine whether human genes can be patented. It is scheduled to be heard April 15.
Monsanto is arguing that Mr. Bowman does not have the right to have his plants processed to reseed the next year. Monsanto makes farmers sign a contract that they will not save seeds. This legally binds them to buying new seeds every year. Those supporting Monsanto loudly cry that any weakening of patent rights will devastate….insert American industry here. Computers, biotech, universities, even the US Justice department have submitted briefs to the Court in favor of Monsanto. As the NYTimes article details, Mr. Bowmans legal argument rests on 1. established cases that once the item is sold, patent holders do not have the right to control how it is used and 2. questioning the persistence of a patent on something that is self-replicating. He argues that he is not making seeds, he is buying self-replicated seeds from a grain elevator (a long standing farming practice).
It is clear that this is a David and Goliath matching; biotech, computers, and even the Justice department have sided with Monsanto. All are crying doomsday scenarios, if the Supreme Court sides wtih Mr. Bowman. The problem, however, is that their approach is based upon viewing private property and patent rights as absolute. It also treats them as all the same. Personally, I find the analogies to Microsoft technology hard to swallow – computer technology is not self-replicating. The issue at hand is whether or not I can patent and maintain patent rights over a live organism…by extension this has turned into allowing Monsanto to copyright weather patterns – as within a few seasons it becomes impossible to not have cross contamination (an issue that was at hand in a complicated and controversial Canadian case).
Monsanto may have Microsoft and the Justice Department on their side. But, Mr. Bowman has Catholic social thought on his side. Applying patent as private property rights to live organisms and genetically modified organisms (particularly when they self-replicate) does not promote the common good. In particular, these practices have been devastating to local farming globally trapping the poor in their dependency upon transnational agribusiness – a dependency that cannot end, because the corporation’s control on their “property” is absolute.
As my students learn later in the semester, American’s revere private property; but Catholic social teaching does not. Private property in Catholic social thought is not a primary right. Private property is derived from the primary principle: the universal destination of created goods. From the very beginning of Genesis, creation is meant for ALL. The Compendium of Social Doctrine of the Church makes this as clear as possible:
“God destined the earth and all it contains for all men and all peoples so that all created things would be shared fairly by all mankind under the guidance of justice tempered by charity”[360]. This principle is based on the fact that “the original source of all that is good is the very act of God, who created both the earth and man, and who gave the earth to man so that he might have dominion over it by his work and enjoy its fruits (Gen 1:28-29). God gave the earth to the whole human race for the sustenance of all its members, without excluding or favouring anyone.”(171)
God created the world and God created the world for the good of all. It is in God’s act of creation that we locate the foundation for the dignity of the human person, the equality of all human persons, and the dignity of creation itself. Even claims to private property within American culture eventually point to it as a god-given right…based on what? Creation. God’s creation, not ours.
While it may not be popular within American culture, private property is not absolute. While it was not well received when an Anglican Priest in England invoked this argument a few years ago to say that it was better for those without any other options to steal milk from a supermarket rather than taking more desperate measures (like drugs, prostitution, and violent crime); his argument for shoplifting was sound Christian ethics. Private property cannot be invoked within Catholic social thought over and against the basic needs of others.
The universal right to use the goods of the earth is based on the principle of the universal destination of goods.Each person must have access to the level of well-being necessary for his full development. The right to the common use of goods is the “first principle of the whole ethical and social order” [363] and “the characteristic principle of Christian social doctrine”[364]. . . . It is innate in individual persons, in every person, and has priority with regard to any human intervention concerning goods, to any legal system concerning the same, to any economic or social system or method: “All other rights, whatever they are, including property rights and the right of free trade must be subordinated to this norm [the universal destination of goods]; they must not hinder it, but must rather expedite its application. It must be considered a serious and urgent social obligation to refer these rights to their original purpose”[366]. (Compendium 172).
We value and protect private property, patenting and copyrighting because they can be in service of the common good. They are not in themselves moral goods deserving of apriori respect. Providing incentives to invention and having farmers responsible for specific land are in the interest of the common good. As anyone who has lived with roommates, if no one is responsible for cleaning the kitchen – the dishes just pile up. Still, these are goods we uphold based upon their utility and efficiency in achieving the common good, not as values in themselves.
The universal destination of created goods, along with the priority of human dignity, reminds us that GOD is the source of creation. I do not create out of nothing, God creates out of nothing.While human persons do create not just discover, we are co-creators, always dependent upon God and others. By what authority then, can I copyright creation? By what authority, can I claim that right to that “privatizing of creation” at the expense of the common good?
Clarification:
The 1980s Supreme Court case first allowed for patenting of live organisms, including but not limited to genetically modified organisms. It allowed for the patenting of parts of live organisms – one particular case where this was done – is in the discovery of various parts of bacteria like that which causes Lyme Disease. My above sentence was unclear – as there was not transition – this case is the decision which solidified Monsanto – and its success in the record number of patent dispute cases (according to the above NYtimes article).
The unending and unbounded patent is created by enforcing Monsanto’s claim of private property over every use of seed. The failure to allow save seed, to reseed, extends the claim far beyond claims that Apple have on what I do with my iPad.
“This unending and unbounded right”
In what sense is that meant? Patents actually have a limited lifetime.
“Diamond v. Chakrabarty [..] discovered but not created”.
Looking at the text of that patent it is clear that a great deal of technological development, engineering, and biological rearrangement (i.e. human creative energy) went into the development of that microbe, and it was not something pre-existing. Calling it discovery rather than creation does not reflect this process of human work and ingenuity.
“computer technology is not self-replicating”
Except that, e.g., computer viruses start on one person’s computer, and then spread in countless copies worldwide. In fact, any computer program could be spread as an attachment that way.
” a dependency that cannot end, because the corporation’s control on their “property” is absolute”
Unless some other company comes along with a different way of providing the same benefits at a lower cost. Which is not exactly a rare occurrence.
“The Compendium of Social Doctrine of the Church makes this as clear as possible”
It does. And it fleshes out the issue by also saying things like: “Universal destination and utilization of goods do not mean that everything is at the disposal of each person or of all people, or that the same object may be useful or belong to each person or all people. If it is true that everyone is born with the right to use the goods of the earth, it is likewise true that, in order to ensure that this right is exercised in an equitable and orderly fashion, regulated interventions are necessary, interventions that are the result of national and international agreements, and a juridical order that adjudicates and specifies the exercise of this right.”
“Applying patent as private property rights to live organisms and genetically modified organisms (particularly when they self-replicate) does not promote the common good.”
That could be the conclusion of an argument where the various ways in which patents (in general or specifically) do promote the common good are examined next to the ways in which they do not promote the common good. It would be good to see such an argument. It would also be good to see a concrete, workable proposal that could replace the existing situation without, e.g., completely disincentivizing the whole thing.
Good piece on an important but often ignored topic. People do care about the subject of genetically modified foods, etc, and the health and moral implications that come with them. I am surprised how often my blog on the Catholic perspective of ecology is searched for terms like “catholic, gmo.” More needs to be said on this because are seeking answers. Thanks for this post.
Thanks for this Meghan. I have two comments: 1) There seems to me a major difference between private property that is human creation, like dishes, and things that are a heritage of millions of years of development, like seeds. Also, I would differentiate goods that are vital for life — water, food, heat — from those goods that are simply goods that enhance our modern life. It is one thing to patent computer technologies, which we have and can live without. It is quite another to patent the source of food. 2) As someone concerned with ecological ethics, I still dislike the phrase “universal destination of goods.” There is a profound difference between inert, nonsentient things, and living beings like plants, trees, animals, etc. I would even differentiate goods that are of use only to humans (e.g. pens and computers) from nonsentient goods that are part of the cosmic common good, like the sun, water, oxygen, etc.