Charlie Schick is an ex-scientist and a determined practical microbiologist. He writes about science, media, and other lofty subjects at http://molecularist.com.
Recently, I’ve been prowling the aisles of liquor stores and supermarkets reading labels of fermented foods, looking for new cultures to use. Am I violating any copyright?
Image from Wikipedia
Back in June, the DIYbio folks in the Boston area had a fun meet-up on yoghurt making, led by Vaughn Tan. One thing that was brought up but we really did not discuss was the copyright of culture strains found in yogurts. Mac asked if there were legal ramifications to using strains taken from commercial yogurt.
I remember a time when it was hard to find commercial products with live cultures, for example beer or yogurt. Beers were pasteurized (ugh) or, later, filtered to remove live cultures. And in the 90s, I remember Stonyfield’s as being the only “widely” available live yogurt.
But now it seems almost all yogurts have live cultures (though not necessarily with a rich set of bugs – some seem to have 1 or 2 instead of the usual 5). And I was impressed with my local liquor store carrying a wide range of beers with live yeast, such as lambics (fermented with a complex collection of wild yeasts and bacteria) and a breton beer, that caught my eye because it was made with two yeasts.
When I need to, I start my yogurt cultures with a starter taken from a commercial yogurt, such as Stonyfield’s. And I’m considering pitching (inoculating) my next beer batch with the two yeasts of that breton beer.
Is this “fair use”? If I give the culture to someone else, is that piracy? And what if I start selling my product?
And how can anyone prove it is their strain? These bugs are easily available, and most are naturally occurring. Will commercial strains need to be fingerprinted somehow for copyright protection?
You can see where this is going: Who will be the RIAA-equivalent in this story, to crack down on infringement? Who will be the EFF– or Creative Commons-equivalent to promote openness? Will we have a Napster-like bug-sharing service, freely sharing strains among all sorts of practical microbiologists?
In the lab, there are usually rules in place to restrict the free sharing of strains or samples. But these are usually for recombinant organisms, where it is clear what was created. What about for naturally occurring organisms?
Open sharing of information is a cornerstone of DIYbio. Will the same freedom extend to the sharing of microorganisms, especially if those microorganisms come from a lab or commercial product?
I don’t have the answers. Do you?
DIYbio 
It’s certainly going to be an interesting decade to come! I wonder about this too, but I don’t think it’ll hit RIAA-style silliness, provided we stick to tried-and-true open principals from the start. Gene Patent challenges in the US are based heavily on the “Naturally Occurring” argument, and if successful could easily be transferred as precedent in any case featuring a naturally occurring strain.
Proprietary, In-Vitro bred strains are another issue, and DIYbioers would be hard pressed to determine whether a strain has been bred extensively in captivity or if it’s basically wild. That could be the lynchpin in a court case over use of a trade-secret organism, but in like manner the defense could simply be “You didn’t pasteurise, so the live nature of the culture is considered part of the purchased product”.
I doubt it’ll be much of an issue if DIYbio does “take off” because culture sharing and a desire to have a common base for comparison/collaboration will probably encourage general adoption of community-adopted strains that lack ties to any corporate entity. Some DIYbioers will definitely want to explore bugs in commercial products, but I don’t think it’ll spook companies enough to encourage lawsuits unless they start making their own products with the strains.
Thanks for the comment. I figured you’d have something to say on this. I had you at the back of my mind when I wrote this, Mr Bacillus-man.
There are already lots of different yogurts and beers and most of them use the same small handful of yeast and bacterial species. If you take Stonyfield yogurt and put it in some milk and then try to sell it as Stonyfield yogurt you’ll get in trouble (first of all because of all the crazy rules about what and who can sell food and how that is regulated). If you call it “Charlie’s awesome yogurt” and you get all the proper licenses and approval, it’s not pretending to be Stonyfield and it isn’t. Lactobacillus makes sour milk, the quality of the starting milk, the processing, and the additives make the flavor and texture of the yogurt, and marketing makes a product. There are a lot of ways that new biotechnologies will affect how we think about piracy and patents, but using naturally occurring strains (even if they come from a commercial product) in your own house doesn’t seem like a big one.
Yeah, using at home should be no issue. But beyond the house, is it still no issue? While you might think these are “naturally” occurring, that’s an over-simplification. For example, the yeasts that commercial brewers use are strains they’ve had for some time, with particular characteristics, and can go back generations (indeed, walk into any brew-shop and see all the varieties of strains). What would they think if someone was selling the strain to others?
And “naturally” occurring never really kept back patents, as the patenting of genes proves. While something might be natural, there is an effort to find and isolate that particular natural item. And businesses want to protect that effort as a barrier to business.
I don’t want to make an issue where there isn’t one. But if you’re starting a business around non-GMO strains, where they come from might be important.
You cannot copyright a bacterial culture. Copyright only applies to creations of the human mind fixed in tangible form — books, music and the like. You can only attempt to patent such things, but at the moment, the status of patents on living organisms is in considerable doubt. Certainly patents have never been granted for non-GMO strains.
You actually can patent bacterial strains that you’ve isolated from ‘the wild.’ I’ve personally done it twice; I was doing research on them and needed large scale freeze-dried preparations (of a GRAS organism) and had to have them prepared commercially. So we patented the strains (isolated by us) and sent them off to protect the potential IP. They’re basically worthless and only of limited academic value, but we thought there might be the potential for something more.
I have considered this on several occaisions, as I brew beer, lots of beer, and I have isolated strains from various brands and used them in my own recipes. As I am not selling or distributing my beers, I believe “fair use” applies. I bought the yeast (it came with the beer!), so what I do with it after that is my business.
As far as strain identification, that is easily accomplished by genotyping. Simple markers or known genetic variations allow for simple PCR testing to confirm stolen strains. This is the method used by my current employer. As a biofuels company with a large genetic engineering facet, we insert DNA markers in our strains to make it easy to identify.
Open-source strains. 🙂
Interesting post and responses, and I agree with others that there’s no legal issue with re-using a non-GMO strain of some sort. But it’s interesting to think about where this would go if, using synthetic biology tools, companies began tweaking commonly used food-industry organisms used to make beer, yogurt, cheese, and the like. Imagine the label ingredient lists peppered with patent symbols. Investigators using DNA sequencing to detect patent violations.
Hi, great blog!
As a quick intro, I’m a cell/molecular biologist by training, an editor by trade.
I think that if patents, lawsuits and strong-arming began to threaten the ability of people to explore and innovate independently, a Bio-EFF (BFF?) would arise. I’d volunteer.
the answer is yer @#$@#$. look at what happened to GM potatos and GM corn. they have sued people who grew corn that accidentally got GM pollen in it.
now go look at the recent federal Justice Department ‘takedowns’ of domain names. they seized a whole lot of domains, some of them had nothing to do with piracy or copyright violation.
look at what is happening to George Hotz. he hacked his own playstation to install linux on it. for this he is facing something like 10 legal violations and they are trying to try him in california when he lives in new jersey.
We have the ‘war on drugs’, the ‘war on terrorism’, now we will have the ‘war on amateurs’. guilty until proven super guilty. your property seized and your career destroyed. who cares if there is a trial?
you guys making yogurt / beer / bread are enemies of whatever megacorp conglomerate owns the yogurt , beer, and bread companies – and their hedge fund string pullers, and their corporate debt owners. you say they cant own the common microbes in the air? Sure they can, just like Scotts Grow can sue some indie fertilizer company becasue it has green and yellow on its bag. Or better yet, once the companies figure out how to make more pervasive GM versions of the ‘common microbes’, they can sue anyone who sticks a bowl on their windowsill to make bread starter. Just ask the non-GM corn growers who have been sued for having a plot of non-GM corn within a blowin’ distance of GM pollen.
They won’t stop ’till they’ve done to you what they’ve done to the corn breeders, the iphone jailbreakers, the guy in the foxconn factory who was tortured to the point of suicide for losing an iphone prototype, the guy with a chemistry lab in his basement who got raided by the cops up in the Northeast, the kid who gets suspended from school for having a camping knife, etc etc etc. We are all just enemies of the system.
you can copyright anything that is a set of numbers. i.e. a DNA sequence is copyrightable if you make it.
if you dont believe me google ‘ps3 free speech flag’.
If they have managed to specifically engineer the strain, or possibly breed the particular strain or strains they use in the product, and they have a patent on it, then it would be if you were making a profit of some sort off of it. Otherwise even if the strain is their proprietary property, they really can’t say anything as long as your not making a profit. If it’s a naturally occurring strain in nature, they probably can’t trademark or copyright it, so if you buy their product, and use it to start your own batch of live culture, then you can sell it if you want, and they can’t argue about it.
If it’s in the public domain – either now or previously – such as yeast and yoghurt bacterias are, then there can’t be patent. If someone inserts markers – i.e. just changes the culture very slightly then it could be argued that it is no longer in the public domain, though I would think that the patent would only hold if there was some added change to the gene sequence that provided a new effect or benefit.