IP and Gender: The Unmapped Connections: Dan Burk

Dan Burk on IP and dualism: I came in a few minutes late, so I missed the intro.

Burk spoke about the dualisms in copyright and patent law, dualisms which are common in Western culture and tend to map on to masculine/feminine, with the former valued and the latter devalued. So copyright has the work and the physical instantiation of the work; as with the first sale doctrine, the two can be split. (I recently read a couple of very interesting pieces in Social and Legal Studies about copyright in musical works and how the work was reified into a thing distinct from any performance, which fits nicely into this.) Fixation is the trigger for protecting a work in US law, but the mental conception rather than the physical is really what’s protected, as with the broader mind/body dualism. Uniqueness versus commonality (my terms) also plays a role: expression has to be original, not coming from outside the author, in order to be protected; joint authorship requires an independently copyrightable contribution, so you can’t simply execute someone else’s expression. Cinematographers and performers aren’t authors even if they’re vital to the existence of the work – this again goes to the mind/body dualism, since these are bodies performing work.

Similar dynamics operate in patent, which is organized around the trope of the isolated genius in his garage, with extraordinary skill in the art, even though most research doesn’t happen that way.

Western culture has a tendency towards dualism; physical work is feminized and subordinated, and patent reflects that. There’s a lot of invisible work – work that makes society run but that is unrecognized, associated with the body, corporeality, physical labor. This connects to what we as a society encourage and reward, and what we assume will just get done somehow. (My comment: this also reflects conflicts between men over what work is “really” manly – men who do physical labor can claim a certain priority of masculinity. In patent, pointy-headed intellectuals who had more influence on law got themselves declared the true creators, even though their work depends on the physical labor of others. Because so much of this work is invisible, Burk pointed out, people who study creativity don’t know enough about who does it; in publishing, the work of editing and polishing is often done by women – but what about the work of physically printing and distributing?) Technicians and artisans are not honored as authors and inventors despite their roles as but-for causes of creativity.

Other areas of inquiry: the products of nature doctrine. Patent covers “anything under the sun made by man,” including living organisms. The only real holdout in the US is products of nature, such as mathematical equations and natural laws, which are not the product of human intervention. Yet they are the products of human imaginings; the ways Newton and Einstein saw the universe were different and creative. This raises the question of what is natural. Everything humans do is drawn from nature. Taken to the extreme, that means that either nothing is patentable or everything is. The nature/culture dualism denies this, but we should challenge that dualism.

Similarly, copyright treats facts as outside people, embedded in the fabric of reality. Even so, most “facts” are value-laden and interpretive, such as photographic images and maps. Though facts are constructed, we continue to divide nature from culture. Nature is feminine, open to appropriation. (My thought: facts and nonfacts are both open to appropriation, but only the latter is exclusive; nature is a whore, not a bride.)

The basic concept of the author depends on dualism – an author can’t exist except in opposition to something (audience?). Maybe this is all a necessary predicate of the romantic author concept.

As I said in comments, I’d add the work/performance dualism, where the work is an abstract and perfect form of itself, and every performance is at best parasitically creative, not complete in itself and therefore, in copyright law, not as worthy of protection for the authorship it presents (see, e.g., sound recordings, performances of plays).