I would like to begin by noting some of the similarities between cultural property and human cells. First, although most people think of cells as something vaguely abstract, they are decidedly tangible. Just as you can hold antiquities in your hand, if they are small enough, human cells in the body or in a laboratory dish are items that can be held and transported. This aspect of human cells makes them subject to all of the questions of tangible property, despite the somewhat mystical quality with which we endow them. Second, most modern questions about human cells relate to their treatment outside the human body, that is, when they have been separated from their ground of origin. And like antiquities that have left their original soil, human cells may take with them the legacy of the environment in which they were once cradled. In a distinctly physical sense, they contain threads of heritage. They also carry the breeze of ancient human couplings and past conquests, as well as the mark of natural events, in other words, things that happen in spite of, not because of, any attempts at human intervention. These aspects also are reminiscent of cultural property. Because of these characteristics, the vessel of the human cell carries within it the interests of individuals, groups, and society at large in a way that challenges traditional and conventional notions of boundaries.

Finally, I have often thought that the rhetoric surrounding debates over the treatment of human cells was particularly heated, at times wandering well beyond the bounds of rational argument. I must say, that, after a brief tour of the literature of cultural property, human cells’ rhetoric seems somewhat mild in comparison. In my own area, I have noted that the rules recommended do not always correspond with the rhetoric of the concerns expressed. I suspect that the cultural property debates may, at times, suffer from similar problems.

I will start by looking at the way in which U.S. property law treats human cells when they are no longer in the human body, that is, detached from their original soil. There are three prominent examples in this genre. In particular, press accounts in recent years have described the life and legacy of Henrietta Lacks. Henrietta Lacks was a poor black woman who died in the 1950s of a particularly virulent form of cervical cancer.^{Footnote 1} Mrs. Lacks died eight months after she was diagnosed with cancer, leaving behind a husband and five children.

Although she would never know, Mrs. Lacks also left an astounding legacy for medical science. Using the aggressive nature of Mrs. Lacks’s cancer cells, researchers developed a revolutionary method for reproducing human cells in the lab. Mrs. Lacks’s cells became the first human cells to reproduce prolifically in a laboratory setting, and scientists have reproduced some 50 million metric tons of her cells over time.^{Footnote 2} The so-called HeLa cell line has contributed to many major developments in the field of life sciences, including the polio vaccine, various cancer treatments, and in vitro fertilization.^{Footnote 3} As one book reviewer noted, Henrietta Lacks became “the godmother of virology and then biotech, benefiting practically anyone who’s ever taken a pill stronger than aspirin.”^{Footnote 4} In short, research on Mrs. Lacks’s cells paved the way for a wealth of stunning developments in the life sciences industry. Critics have noted, however, that her family did not share in that bounty.^{Footnote 5}

A similar set of facts formed the basis of Moore v. Regents of the University of California. ^{Footnote 6} John Moore was treated for leukemia at University of California, Los Angeles (UCLA) Hospital. In the course of his treatment, as well as follow-up care for seven years, doctors at UCLA Hospital removed his spleen and took samples of tissue and blood.^{Footnote 7} The doctors told Mr. Moore that the procedures were necessary for treatment of his life-threatening cancer. They did not, however, tell him that his cells were unusual and offered great potential for scientific research.^{Footnote 8} Working on cells from Mr. Moore, researchers at UCLA established the “Mo” cell line, made up of physical cells. By the time the case went to trial, UCLA had received hundreds of thousands of dollars in revenue from the cell line, and experts estimated that the value of the line could reach into the billions.^{Footnote 9}

A variation on the Moore theme arose in a case involving Canavan disease. Canavan disease is an incurable, degenerative disease in which patients generally die before reaching adulthood. Parents of children who had been diagnosed with Canavan disease established a database of information, donated family tissue samples, and convinced a researcher to focus on the information in hopes of isolating the gene and creating a prenatal test.^{Footnote 10} The researcher succeeded, patenting both the isolated gene and any method of testing for the gene.^{Footnote 11} The parents objected when the patent holder began restricting the number of labs that could offer testing and charging a fee beyond the cost of the test.^{Footnote 12}

In the few cases that the courts have considered in this area, two principles have emerged. First, human cells are treated differently when they are outside the human body from when they are within. Second, human cells are not property, although those to whom the cells were once attached may have privacy or informed treatment rights.

Treating cells differently when they are outside the body makes intuitive sense. We would have different sensitivities when cells are still attached to their soil of origin. The second issue—that cells outside the body are not property—is more troubling. I have criticized this doctrine, as have many others. The reasons for that critique are less useful for my purposes here, because with cultural property, there is no question that we will treat it as property. What is germane about this area of law, however, relates to sorting through the various interests that might attach to such separated items, regardless of whether one chooses to analyze them under a real property rubric or something else.

What I am about to suggest here may not be at all what people expect. Stories like those of Mr. Moore, Mrs. Lacks, and the Canavan families, are deeply troubling, but identifying a private sphere of control for individuals based on whether something has ever been in their bodies may not be the answer. We tend to think of anything in our bodies as “ours,” but contemplating those things when they are in the state outside our bodies gives room for thinking about them in ways that are more complex and more challenging.

For example, if a parasite has embedded itself under my skin, does that make it mine? How about a virus? Is a cancerous tumor any different? What about the information contained in my cells. Does that belong only to me or are there multiple interests?

People certainly have legitimate concerns about the use of their tissues and their cellular information, but we may want to be careful about rushing to address those concerns by giving individuals complete control over the domain constituting everything that has ever been in their bodies. I do want to be clear: The question is not whether individuals have some level of interest or control, but rather what is the basis of that interest and what types of control are commensurate with those interests.

There is an unspoken problem lurking in all of these debates, which again, I suspect is echoed in some aspects of cultural property. Peel away the rhetoric from much of this, and at bottom, “it’s about the money.” It is tough to solve that type of problem with the all-or-nothing approach that we currently take. Thus, solving such problems may require acknowledging that, as well as moving away from all-or-nothing solutions.

A few minutes ago, I noted in passing that it makes sense to treat cells outside the body differently from the way we treat them when they are inside the body. I want to push back on that a little bit. Yes, we do need to treat cells differently when they are attached than when they are not attached, but we probably also need to think about human cells that are attached differently from the way in which we think about them now.

The boundaries that mark the interests of individuals, groups, and society as a whole, are becoming more permeable, even for human cells. Ownership of genetically altered organisms offers a perfect example. Using recombinant DNA and other genetic-engineering techniques, scientists have been able to create genetically altered living creatures, ranging from lowly bacteria to higher order life-forms, such as oysters and mice. Modern law allows scientists to hold patents, not just on the method of making those creatures, but also on the creatures themselves. As one expert in the field noted, “If you want to build a bookcase, you can find a nice tree, chop it down, mill it, sand the wood and hammer in some nails. Or you could program the DNA in the tree so that it grows into a bookshelf.”^{Footnote 13}

Our treatment of nonhuman life under U.S. law generally has been quite distinct from our treatment of human life. Nevertheless, the concept that an altered, living creature is of interest to others outside the creature is a concept that has the potential to implicate humans as well as mice. If aspects of the human body arise not from nature but are externally created, what is “ours” to control, and where is our personal boundary? The question is not as abstract as it may appear. Science is moving toward the development of things that are not natural, that is, not based on DNA at all, but able to replicate within the human body. One can think of these as artificial cells or organs, and they may be able to perform functions that ordinary patients, or the patients’ particular cells, cannot.

What are the implications of those completely artificial, replicating elements of life? When the cells are introduced into a human body, does the company that created the cells have the right to information generated when those cells integrate with your body, or to control your use or sale of the cells? If the development of the product is funded by the government, and much scientific research is, does the government have rights? Are these issues yours to control, based on the agreements you enter into, as long as you have entered into those agreements freely?

Regardless of the status of agreements you may enter into, questions will arise related to whether the information within your body, and control of the cells carrying that information, are solely of private interest to you or also of public interest. One can think of the human race as a giant genetic puzzle, with each of us carrying a piece of that puzzle. Does the community have any interest in the puzzle as a whole or, are the elements subject to the private control of each person and the agreements individuals, or individual communities, might make among themselves?

The point is simply that while cells attached to the body are indeed different from cells that have been separated, the issues raised are more complex than they appear, particularly in the context of modern technologies. I suspect that similar issues may arise in the realm of cultural property. Transformation, preservation, adaptation, and reproduction are increasingly possible as technology advances. These gifts make boundaries more permeable, and the issues raised may suffer if we try to impose old constructs on these modern questions.

For better or worse, the next generation seems to be better able to imagine and to grapple with permeability of boundaries. I would like to spend the last few minutes of my talk focusing on how boundaries are shifting in the modern world. I am referring not only to the more traditional notion of boundaries of the nation-state, but also to the more abstract notion of information and privacy boundaries between the individual and the community. An inherent part of cultural property is the intangible aspect, such as the information contained within such property and embodied by that property. Such information includes the cultural history of the item, perhaps even the accumulated skills, knowledge, and heritage that together built up to allow for the creation of that item. From that perspective, issues that are arising in the information technology realm may be useful, particularly to the extent that they relate to value created through comingled knowledge, labor, and information.

My favorite example of how technology is changing our boundary conceptions is the web site, “Please Rob Me.” It is run by an Internet privacy group in Denmark. The goal is to shock people into understanding how vulnerable they are when they post information. Specifically, the site takes Twitter posts in which people comment on where they are, such as “Hi, I’m at the Grand Canyon,” or “Just leaving home on my way to work,” “Please Rob Me” then republishes those posts openly on the Internet. The group hopes to sensitize users to the fact that when people advertise their location outside of the home, they are offering their homes as tempting robbery targets for thieves. It is an interesting way to demonstrate, in a concrete fashion, the vulnerability created when one posts information. Most surprising was the reaction of some of the Twitter participants. When confronted by a reporter who showed them that their information was now featured on “Please Rob Me,” some users simply shrugged it off and indicated that it would not affect their behavior.^{Footnote 14} It is not just that technology is making it easier for us to do things that would have been too difficult before, technology is changing what we do and most importantly, our sense of boundaries between ourselves and the community.

Consider the following example that occurred long before the advent of complex social-networking sites such as Twitter or Facebook. A female law student in a chat room posted a description of her violent sexual fantasies about another female student, creating problems for the institution that both attended. In roaming through the chat room, officials were shocked at the intimate and explicit nature of many of the posts.^{Footnote 15} In an earlier era, one would not have mimeographed such thoughts and placed the copies in everyone’s mailbox. In other words, we are not talking about technology making things easier. Rather, our personal thoughts and activities are bounded and restrained in a different way today than they were in the past.

The fluidity of boundaries creates innumerable issues related to ownership and control,^{Footnote 16} not just the more obvious ones such as who owns the content that one posts on Facebook or the character one creates in a virtual world, but more subtle ones as well. What if someone using an Internet search engine is particularly creative in his or her approach to searching? Does that creative approach belong to the user whose thought process created it, or to the web site whose structure of interactions prompted it, or both?^{Footnote 17} Suppose the search engine’s understanding does not come from the actions of one individual alone, but from the cumulative effects of many. Then whose information is it? In deciding whether an individual should have rights of some kind to information created or revealed, does it matter if the user is not even aware of the value of his or her thought process or the value and particularity of the information revealed?

As we try to answer these questions, the new generation seems able to travel more readily across boundaries and to conceptualize them differently. On the positive side, it could signal an openness to thinking in less stratified terms.

From the vantage point of my generation, I have an instinct to see the tendency to spill across boundaries as dangerous and to reach for rigid lines of demarcation and control to mitigate that danger. Perhaps, however, that instinct reflects an outdated mode of thinking in which dangers are conceptualized as coming from single points, and the goal is to mitigate the danger by controlling those points. With modern insight into systems behavior, however, such an approach is rapidly proving inadequate, whether one is contemplating biological or social systems. For example, the old approach to fighting tumors involved targeting a tumor to reduce its size or denying substances that seem to feed it. Emerging research suggests, however, that tumors and other biological processes may work more like networks. Choking off one point on the network may be ineffective, given that the network can easily develop a new way around. In fact, the new workaround may be even better than the old pathway, causing the tumor to grow faster than before the treatment.^{Footnote 18} Thus, as so often is the case, the newer generation may have better instincts than we do about the sources of dangers and the futility of the protective myths we use to comfort ourselves.

Perhaps their fluidity of boundaries and their willingness to tolerate less stratified control will allow for moving past the type of all-or-nothing regimes for cells and for cultural property that seem to be serving us so poorly at times.