Of Scientific Claims and Proprietary Rights: Lessons from the Dead Seas Scrolls Case
Niva Elkin-Koren · Houston Law Review · 2001
Comparing the human genome project with reconstruction of the Dead Sea Scrolls manifests more differences than similarities. Even though both are scientific projects, they each belong to a very different discipline, seek divergent objectives, and use distinct methodologies. The two projects are essentially similar, however, in that they seek to reveal a single truth. This fundamentally identical purpose and claim of both projects, I would argue, should affect the scope of rights rendered to scientists. The nature of scientific projects and the essence of scientific claims, as such, are central for the intellectual property analysis. Comparing the apparently dissimilar projects demonstrates the most extremist ramifications of the Dead Sea Scrolls decision. What is the nature of the scientific project, and what should be the role of proprietary rights in this endeavor? To what extent should a scientist be permitted to acquire proprietary rights in his or her research? The legal dispute over the feasibility of proprietary rights in the reconstruction of the ancient Dead Sea Scrolls challenges the tenets of intellectual property law such as the notions of creativity, authorship, originality, and progress. A close reading of the case further contests our beliefs regarding the boundaries between the arts and sciences, discovery and creation, and deciphering a text and translating it. It calls for examining the boundaries between proprietary rights and public domain in scholarly research. I would like to use the Dead Sea Scrolls case as an opportunity to explore these thoughts and beliefs which intrinsically shape our copyright doctrine. Nimmer’s phenomenal monograph provides an exceptional glimpse into one of the most dramatic cases ever tried in the history of copyright law. His insightful and poetic analysis of the Dead Sea Scrolls case covers its many layers. Alongside the legal analysis, Nimmer portrays the historical background, thenational and ethnic tensions, the professional ambitions, the mixed motives and desires, the personas (scholars, publishers, lawyers), and the organizations and institutions who took part in this drama. This rich, in-depth description of the dispute offers an alternative narrative to the one portrayed by the Israeli Supreme Court, thus unveiling some of the underlying assumptions that shaped the Court’s decision and offering some fresh insights regarding the dispute. In this Comment I focus on what I believe is a fundamental error in the Court’s legal analysis which led the Court to mistakenly extend copyright protection to a scientific achievement. I argue that the Court erred in confusing two distinct copyright standards: one is the originality test and the other is the idea/expression dichotomy. Applying the originality test to ideas unprotected by copyright law led both the District Court and the Supreme Court to uphold a scientific work as a copyrightable subject matter.20 I will offer some explanations for this error and discuss the ramifications of this decision to the scientific project.