The right to graze your pigs in the forest, collect firewood, and to be genotyped
Magna Carta may get all the attention, but its poor cousin, the Charter of the Forest, deserves at least equal consideration. For one, it was the writing of the Charter of the Forest, two years after Magna Carta in 1215, that put the ‘Magna’ in Magna Carta. What we now call Magna Carta had been known at the time of its issuance as “The Articles of the Barons”, which sounds more like a polite euphemism in the castle laundry room for the barons’ undergarments than something to keep in the history books. After the writing of the Charter of the Forests, so as to distinguish the two charters, Magna Carta received the title that helped ensured its Olympic enshrinement.
Secondly, the Charter of the Forest has a much more exciting vocabulary. The language of Magna Carta, dealing most with property and inheritance issues, was well within the staid grasp of the Latin in which it was written. But the Charter of the Forest deals with more down to earth issues, and it’s written in a delightful Anglo-Norman bastardization of Latin. One can almost imagine the clerks scratching their tonsured scalps, trying to figure out how to translate old English words like ‘swanimote’ (‘swain’+’moot’, a court held to decide on offences related to the forest), which they rendered in Latin as ‘suanimotum’. Or ‘pannage’ (the right to let one’s pigs browse in the forest), which possibly came to English via the French ‘pasnage’ via the Latin ‘pastionaticum’ (which also means letting pigs graze on acorns) but was rendered back into Latin in the Charter as ‘pannagium’. Or cheminage, which is the right to pass through a forest, and in its usage in the Charter, specifically with the intent of collecting wood , comes via the French ‘chemin’ (road), which is from the Latin caminus, but is rendered back into Latin in the Charter as chiminagium. I was brought by the lee in many a French test in high school via similar guesswork at what I hoped might be French, but possibly Madam Kessler was more exacting than whoever checked the work of King Henry’s clerks.
Finally, while Magna Carta mostly addressed grievances of the barons, the Charter of the Forest addressed those of the common person. Barons may outrank us commoners, but we decidedly trump them on sheer numbers. Take that word ‘cheminage’; the Charter says that a forester “may exact chiminage … only from those who come from outside his bailiwick … to buy wood, timber, bark, or charcoal and take them elsewhere to sell…. Those, on the other hand, who carry wood, bark, or charcoal on their backs for sale, although they get their living by it, shall not in future pay chiminage.” In other words, a forester cannot charge someone who comes into their forest to take out firewood, unless they don’t live in the neighborhood and can afford a donkey and a cart. Recalling when I lived in northern China with its cold winters (now we live on China’s more sultry southern shores), I can attest that come autumn an entire village’s economy may seem to be entirely based on gathering and accumulating large piles of sticks. Those carrying the bundles on their backs did not appear to be among the baronetcy.
Denying the existence of a commons transforms something from being a right of the community into a resource to be monetized.
In fact, the Charter of the Forest was one of the first legal documents to lay out our rights to the commons, that is, those parts of our community or neighborhood that we use not for commerce but to simply provide for ourselves. Collecting sticks in the woods, or letting your pigs graze on acorns, were aspects of the commons protected by the Charter. This was important from both an economic perspective as well as a societal one. Denying the existence of a commons transforms something from being a right of the community into a resource to be monetized by the few. Unfortunately we have proven to be better at the latter than protecting the former. However without the existence of commons, people are forced to change from being, well, just ‘people’, into ‘consumers’.
The advent of the science of genomics raises a new item that could be added to these charters. Is our genome a commons, or a resource? May we employ our genome on our own terms, or only on the terms set by companies, pharmacies, or the government? In terms of our genetics, are we destined for autonomy or dependence?
This question, which gave the title to this site, has been an area of concern for several years already. The first shots in this battle between those championing our genome as a commons versus our genome as a resource were fired in the early 90’s, when Craig Venter, then a scientist the National Institute of Health, developed a technology to rapidly identify regions of the genome that were expressed. Based on this advance, the NIH made a push to patent massive numbers of these gene snippets (known as ESTs). Jim Watson, one of the co-discoverers of the structure of DNA, was much opposed to this effort, as were most of the academic community, and the NIH’s insistence on the matter contributed to Watson’s resignation from his post as director of the NIH’s human genome department. Fortunately ESTs were later deemed unpatentable in the US, and in 2013 the Supreme Court ruled that even entire genes were not patentable.
Forward a decade from this first skirmish, and Watson and Venter were head-to-head again on the field of combat, Watson as head of the public effort to sequence the human genome project, and Venter as head of a private effort to do the same. The public effort had decided, in what came to be known as the Bermuda Principles, that the sequences generated by their efforts would be released within 24 hours of an assay being completed. I think “The Bermuda Accords” would sound even more like a Hollywood thriller, but “The Bermuda Principles” is still pretty good, with Daniel Craig probably as the lead. In any case, Venter’s company had hopes for making the data available only via a paid subscription service and, of course, to be able to patent a whole host of newly discovered genes. To counter this, Watson helped kick the public effort up to a higher pitch, and both efforts completed their sequencing at roughly the same time.
Our genes could come to be viewed as a resource controlled by others, our genomes becoming an enclosed space from which we can be excluded.
These victories of the scientific community to keep genetic information in the communal space are needed and appreciated. The wording of ‘commons’ has even been employed; there is an endeavor known as the ‘Genomic Data Commons’, an effort between the National Cancer Institute and University of Chicago to create an open portal of sequence and related clinical information. However we should recognize that these are only a partial addressing of the issue. Data being free and there not being a way to claim intellectual property rights to our genes means that the science can operate freely. This matters a lot as we’re still at the stage where what we don’t know far outnumbers what we do know of our genome. But looking ahead there are still places where our genes could be seized as a resource, our genomes becoming an enclosed space from which we can be excluded. Two battles may have been won, but there is still no rest.
One example, we could be denied the ability to know about our individual genome. Is a service that determines your sequence and then tells you the possible relationships between your genetic variations and health correlations a medical service that should be regulated in the same way the some medicines can only be offered via doctors after rigorous clinical trials, or somewhat less stringently, in the way that medical devices are offered? Or is this genetic information just a somewhat more technical variant of family history and our own sympathy with our personal health? In other words, should knowing your sequence and its possible uses be within the genomic commons, or should it be in the domain of the medical community and government, to be doled out to us as they see fit?
Obviously from the way I wrote that paragraph, I believe the former (dissimulation has never been my strong suit, nor has tact of any high degree). This isn’t to say that there is not a role for regulation here. Ensuring that services are measuring our genetic sequence with reasonable accuracy does not limit our personal freedom or enclose the genomic commons. Regulation could also be envisioned that might help prevent the hype of unsubstantiated medical correlations to our genetic variations that wouldn’t seriously impede on the commons. However there is strong sentiment in the medical and regulatory community that more than these minimal efforts are warranted, that for our own well-being the commons should be enclosed with the FDA as one of the gatekeeper.
One more example, looking a wee bit into the future: the Supreme Court ruling against patenting a gene didn’t say that changes to genes couldn’t be patented, and we’re almost at the point where we can start making alterations to our own genome. Similar to how many well-paying jobs require extensive, and often expensive, education, it’s easy to imagine a future where certain edits to our genome are necessary to get certain jobs or live certain desired lifestyles. If faced with potential prospects, one ‘normal’ and the other with the genetic modifications that give them photographic memory (great for engineers), or better visual color acuity (for designers), or stamina (important during that fourth quarter of a football game), who gets selected? Who will marry someone carrying an allele for disease risk, even if they are healthy? Think of the children! And thus the companies holding the rights to these changes gain control of the commons.
There may be no need to waylay poor young King Henry and present him with the Charter of the Genome, or at least, not yet. But retaining a genomic commons is important.
None of this has come to pass, and so there is no need to waylay poor young King Henry and present him with the Charter of the Genome.
Not yet, at least.
However it would be best, as efforts like the Bermuda Principles and the Genetic Data Commons have helped ensure, that we retain the commons, rather than have it become enclosed it and then have to demand its return via our charter. For one, my Latin never proceeded past amo, amas, amat, and hic, haec, hoc, so translating ‘genome wide association analysis’ and ‘transgenetics’ would be tricky. Secondly, Henry the Third being dead, it’s not clear who we should force to sign our Charter of the Genome. Is it an issue of patent law, human rights, ethics, or all three? As that well-known joke goes, an official from the US Patent Office, the chair of the UN Human Rights Committee, and the Pope walk into a bar… The best scenario is that we see our genome as a commons, and never let the fences around it be raised.
