IP and Gender: The Unmapped Connections: Carys Craig

Carys Craig on dialogic authorship: Rather than seeing copyright as a body of law about individual, private property and natural rights, we should see it as about cultural policy and communications regulation. The dominant economic rationale’s biggest weakness is its failure to understand authorship and the creative process it’s supposed to encourage. Only a focus on the meaning of creative production – for creators themselves and for society – can give us that.

Copyright law skipped the 20^th century in creative production: the rhetoric of authorship does so much work that it allows us to ignore the absence of individual genius in most works protected by copyright. The law makes a moral divide: author/copier, owner/infringer. If creativity is the result of accretion, these are mischaracterizations, silencing authorship that lands on the wrong side of these binary oppositions.

The project: how to acknowledge that culture grows by accretion while still using the author as a necessary concept? Relational feminism offers an answer in the situated but still autonomous, rights-bearing self. Copyright, unlike literary theory, can’t give up on the author, and anyway we’re not willing to discard the author even after deconstruction.

So we should begin by collapsing liberalism’s false dichotomies. People are socially constituted and autonomous agents. Jennifer Nedelsky offers the concept of the relational self, in dialogue with others. The truly autonomous self isn’t isolated from others but interdependent; rights are relational, in that they structure and represent relationships. Rights are affirmations of the values and relationships to which we aspire.

The relational author is one who creates out of her surroundings. The materials are given but her authorship consists of reinterpretation and re-presentation in a process that’s simultaneously creation and evolution. Copyright, in this view, creates rights and structures relationships between citizens, enabling communications and exchanges between authors and the public. Copyright is an affirmation of the social value attached to the expression and exchange of ideas. (Here I think Julie Cohen might have said something that she said at the Cultural Environmentalism conference: People structured by a rigid economic-focused copyright regime are also people; we need to add some concept of flourishing to say that the structure should work differently.)

Dialogic authorship emphasizes participation and voice. Feminist literary theory has evolved dialogue as a central concept as a result of a similar challenge – how to reject the solitary male genius idea without totally fragmenting the author and denying the agency and subjectivity of every speaker. It does matter who’s speaking precisely because some people – especially women – have been denied speech and denied the right to be called authors. The attempt is to reclaim women’s voices and authenticity while still rejecting the patriarchal author-figure.

We resolve the dilemma with dialogue. Expression is an interplay and struggle of meaning. No utterance is independent or original but it still matters who’s speaking, since speech constitutes identities and social relations. (I’m still wondering how you decide what’s authentic, but that’s such a big deal in feminist theory that no one could give you the answer – in the best tradition Craig describes, it will only come out of dialogue.) Dialogic authorship allows us to see the author as a citizen and a participant in social dialogue. (Which reminds me of Marjorie Garber on academics – we almost always see ourselves that way, which leaves us open to misinterpretations when non-academics enounter a piece of that dialogue in isolation. I didn’t think of it at the time, but I’d love to see what Craig thinks of the possibility of misinterpretation and misreading within, or without, dialogue. If context is key, what does it mean to be taken out of context?)

What legal and doctrinal implications? It would be a big step to see copyright as a tool of cultural policy and speech regulation, not just a tool to protect individual property owners. Originality as a structuring concept would survive because it must survive, but it could be defined around the kinds of engagement with the world we want to encourage. The derivative works right would be sharply limited, and fair use would be broad. (And here’s my hobby-horse: I want to know how this theory will deal with pure copying as a means of participating in dialogue, like my quoting John Stuart Mill or Catharine MacKinnon in a discussion about copyright -- or, for that matter, in a discussion about pornography, where the recontextualization is far from obvious.)