The Problems of a Synthetic Biology Commons

Here's a fascinating paper:

Novel artificial genetic systems with twelve bases instead of four. Bacteria that can be programmed to take photographs or form visible patterns. Cells that can count the number of times they divide. A live polio virus "created from scratch using mail-order segments of DNA and a viral genome map that is freely available on the Internet." These are some of the remarkable, and occasionally disturbing, fruits of "synthetic biology," the attempt to construct life starting at the genetic level.

All good stuff, but there's a problem that may be of interest to readers of these posts:

synthetic biology raises with remarkable clarity an issue that has seemed of only theoretical interest until now. It points out a tension between different methods of creating "openness". On the one hand, we have intellectual property law’s insistence that certain types of material remain in the public domain, outside the world of property. On the other, we have the attempt by individuals to use intellectual property rights to create a "commons," just as developers of free and open source software use the leverage of software copyrights to impose requirements of openness on future programmers, requirements greater than those attaching to a public domain work. Intellectual property policy, at least in the United States, specifies things that cannot be covered by intellectual property rights, such as abstract ideas or compilations of unoriginal facts, precisely to leave them "open" to all – the public roads of the intellect. Yet many of the techniques of open source require property rights so that future users and third parties will be bound by the terms of the license. Should we rethink the boundary lines between intellectual property and the public domain as a result?