'Intellectual Property Rights and Detached Human Body Parts' by Justine Pila in (2012)
Journal of Medical Ethics considers -
whether the IP regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognized by European and international law in respect of authorial works. In the argument made, both of these species of IP right suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same.
She notes that -
Detached human body parts have substantial commercial value and will therefore be exploited, whether legally or not. For this reason alone one might argue that there exists a need to regulate their exploitation, and that statutory rights of property such as those conferred by the intellectual property (IP) regime are a mechanism well suited to that end because of their ability to accommodate a range of private and public interests. The question which then arises is whether any aspect of the IP regime in particular suggests an appropriate model for protection.
The European IP regime covers a diversity of rights, each with its own juridical and theoretical basis, making it preferable to focus on specific IP rights rather than the IP regime in general when answering this question. The relevance of such rights can then be determined having regard to the specific interests which it is sought to protect, and to the aim of legal protection in general.
The IP rights of most obvious relevance are those conferred by the patent system, which already protects detached human body parts in most developed jurisdictions. In this paper I start by considering the extent of that protection in Europe, and the relevant strengths and weaknesses of the European patent system. I then consider two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic United Kingdom law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to facilitate the law’s recognition and accommodation of the different public and private interests in respect of the same. This is consistent with my suggestion elsewhere that while patents ought to be available for subject matter involving elements of the human body, they are not appropriate for the protection of such elements as products per se.
