By Donrich Thaldar
Nobody area of the legislation holds unique sway over human genomic knowledge. As an alternative, genomic knowledge have a multidimensional authorized nature, that means that a number of authorized domains — together with property legislation, privateness legislation, contract legislation, and mental property legislation — are all relevant. This opens the door for various individuals to have rights originating in several authorized domains with respect to the identical genomic knowledge.
To find out who has rights with respect to a selected individual’s genomic knowledge, the principles of every related authorized area should be utilized. The applying of those guidelines to genomic knowledge could also be comparatively easy in some domains, however in property legislation — which is related in figuring out possession of genomic knowledge — it’s typically extra difficult. Solely a handful of jurisdictions have particularly legislated on the possession of genomic knowledge. Within the absence of such particular laws that gives who owns genomic knowledge, basic property legislation guidelines should be utilized. (In frequent legislation authorized techniques, and a few blended authorized techniques the place laws is absent, this may entail resorting to the jurisdiction’s frequent legislation.) Nevertheless, given the novelty of making use of property legislation guidelines to genomic knowledge, it’s not all the time apparent which of the final guidelines would apply. On this publish, I’ll share a few of my analysis group’s pondering on this regard. Though our pondering relies in South African legislation, lots of the rules are shared with different authorized techniques.
Let’s start!
A useful begin is to contemplate the genesis of genomic knowledge as a authorized object. There may be genetic info (i.e., information about heredity) encoded within the DNA of each cell in a human physique. Nevertheless, in its pure kind (i.e., encoded in DNA) genetic info is neither able to human management, nor helpful in aware human exercise. Accordingly, genetic info locked up in DNA doesn’t qualify as a authorized object. It is just when DNA is sequenced and genomic knowledge are generated (i.e., when information are collected for evaluation and saved digitally), that there’s something — a knowledge occasion — that’s able to human management and helpful in aware human exercise, akin to genomics analysis. It’s at this level {that a} authorized object comes into being. (And to reiterate, as a result of we will management pc information, we will personal them — they’re digital property, and infrequently fairly invaluable!)
The right way to purchase a brand new authorized object
As genomic knowledge are newly generated, an authentic mode of acquisition of possession should apply. There are solely two authentic modes of acquisition which can be probably related to genomic knowledge, particularly (a) acquisition of fruit (which might view genomic knowledge because the fruit of DNA), and (b) acquisition of a res nullius (which might view genomic knowledge as a res nullius — actually “no one’s factor” — that may be acquired by whoever first takes efficient management of it with the intention of being the proprietor).
The development of genomic knowledge as fruit
Can genomic knowledge be seen because the fruit of DNA? We propose not. In property legislation concept, the fruit-bearing object just isn’t solely a vital antecedent of the fruit — it should produce the fruit. It appears contrived to recommend that DNA produces genomic knowledge. Extra aptly, DNA is being described by the genomic knowledge. Accordingly, the development of genomic knowledge because the fruit of DNA doesn’t match effectively with property legislation concept.
Would an answer be to assemble genomic knowledge because the fruit of one thing aside from DNA? That is an attention-grabbing chance, however problematic, as genomic knowledge are generated by a sequencing course of that makes use of a multiplicity of distinct objects, starting from sequencers within the lab, to cloud servers utilizing software program as a service — all of which can have totally different house owners. In contrast, basic property legislation concept contemplates the fruit being produced by a singular fruit-bearing object. Additionally, can the objects concerned within the sequencing course of correctly be described as themselves producing the information, analogous to an apple tree producing apples? Though a lot of the sequencing course of is automated, the tools and software program used within the sequencing course of are finest conceived of as devices within the palms of the lab technicians. Accordingly, it’s uncertain whether or not a development of genomic knowledge as fruit can theoretically be sustained.
The lab technicians’ labor?
If we settle for that genomic knowledge are generated by lab technicians, can such lab technicians have a declare to proudly owning the information based mostly on their labor? Funding of (mental) labor generally is a floor for the vesting of rights, however provided that the product falls inside one of many well-defined sorts of mental property (IP), akin to copyright or patents. The problem with genomic knowledge — I’m referring particularly to “uncooked” sequence knowledge — don’t qualify for both copyright or patent safety. If a dataset is compiled with the genomic knowledge of assorted people, such a dataset might, in sure jurisdictions, qualify for IP safety. Nevertheless, this chance in IP legislation doesn’t resolve the property legislation drawback of authentic acquisition of possession of a newly generated genomic knowledge occasion.
I ought to point out that the European Union (EU) is certainly contemplating making a new proper for knowledge mills within the knowledge that they generate. Nevertheless, this new proper won’t embody human genomic knowledge.
The development of genomic knowledge as res nullius
On condition that the development of genomic knowledge as fruit has confirmed to be unsustainable, and on condition that no different mode of authentic acquisition of possession provides even the superficial chance of being relevant to genomic knowledge, the one remaining choice is {that a} newly minted genomic knowledge occasion belongs to nobody — it’s res nullius. This development permits for authentic acquisition of the genomic knowledge occasion via occupation, which requires the desire to be the proprietor and efficient management of the thing. The result’s fairly workable: The lab technicians conducting the sequencing will likely be finest positioned to accumulate possession on behalf of their employer, as they’ll already be in efficient management of the genomic knowledge.
What concerning the knowledge topic?
However, what concerning the individual to whom the genomic knowledge relates — also known as the “knowledge topic” — ought to this individual not mechanically be deemed the proprietor of the genomic knowledge? Nicely, no. Having a private reference to an object isn’t any authorized floor for claiming any property rights in such an object. If the private connection is of such a nature that it might moderately influence one’s privateness, it might give rise to privateness rights in respect of the thing. Within the context of informational privateness, over the previous decade or two, many jurisdictions have enacted knowledge safety statues. And though some privateness rights might seem property-like, it doesn’t imply that privateness legislation has been subsumed by property legislation. Every of those authorized domains has its personal distinct theoretical foundations, constructions, and guidelines. As an example with an old school instance: I can get an injunction in opposition to you to destroy a stockpile of pamphlets — your property!— that comprises libelous statements about me. This doesn’t imply that my dignity is my property. It merely signifies that totally different authorized domains work together in a dynamic manner and that rights with a foundation in a single authorized area of the legislation can, relying on the jurisdiction and the circumstances, supersede rights with a foundation in one other authorized area.
To conclude
The res nullius development of genomic knowledge is the one manner to offer a sound legal-theoretical foundation for the acquisition of possession of a genomic knowledge occasion. As soon as such a foundation is established, the rights entailed by possession may be distributed via contract. Importantly, nevertheless, sure rights within the possession bundle are more likely to be encumbered by the information topic’s informational privateness rights. It’s the process of good expertise attorneys to rigorously delineate the extent of such encumberment.
