10 Aug 2021Tim Slingschröder
To those who are not familiar with Intellectual Property laws, the notice of living organisms being subject to Patents or comparable rights may sound strange. Biotechnological developments however have led to the ‘creation’ of hundreds of new types of micro-organisms, plants and even animals. Can the scientists creating these organisms obtain exclusive rights over the species they bring into existence?
That humans can legally own individual organisms such as plants or animals will not come as a surprise. Though the currently valid provisions of the Civil Code do not literally specify living beings as being objects subjectable to ownership rights, several other sources of law do confirm an animal’s legal status as property. In his book Hukum Perdata Hak Jaminan Atas Tanah for example, famous expert on Indonesian civil law prof. Sri Soedewi Masjchoen Sofwan describes how animals qualify as tangible goods as meant under Article 513 of the Civil Code. Like with any other type of property, the owner of an animal, plant or other living creature can decide to transfer the ownership rights over the animal or plant (or its offspring) to other parties. However, just because someone might legally own a cow and all calves it produces during its lifespan does not mean he can prohibit anyone else from owning the same breed of cow as well.
Being the smallest living creatures, micro-organisms are a logical first group to mention in this article. Modern-day biology classifies viruses and bacteria as micro-organisms, but unicellular algae and fungi also fall under this widely diverse category. Probably due to their simplicity as compared to larger organisms, micro-organisms are the only group of living beings which can be subject to Patent rights following Article 9 of Law 13/2016 about Patents. Hereby micro-organisms are being treated as any other object which can be protected through Patent. This roughly means the type of micro-organism in question must have been non-existent before and can not easily be recreated by professionals in the same field. If these conditions apply and the Patent is granted over the organism, no third party is allowed to use a specimen of the same type of organism without the rightsholder’s prior permission.
Scientifically created plant types can be protected as Intellectual Property through Law 29/2000 about Plant Variety Protection (PVP). Article 1 of this law states that, in order to be recognized as Intellectual Property, a plant type must have genetic characteristics that differ from similar plant types. A second requirement is that the plant type in question must be able to reproduce itself without the offspring losing these unique genetic characteristics. Once this is indeed the case, Article 6 of the PVP Law grants holders of PVP the exclusive right to use the seeds and harvested products of the plant type in case. Much like how holders of PVP rights can forbid others from using the type of plant those rights apply to, holders can also express their allowance for certain parties to use the plant. This can be arranged through a License Agreement following Article 42 of the PVP Law.
After reading types of micro-organisms and plants can be subject to Intellectual Property rights, one big question remains; can scientists have the exclusive rights over new types of animals they created? As of February 2020, there are no laws or regulations offering the possibility to acquire exclusive rights over dog breeds or other ‘newly invented’ types of animals. In fact, the earlier mentioned Patent Law even forbids it in its Article 9.