IP and Gender: The Unmapped Connections: Panel 1 comments

Christine Haight Farley commented on Burk and Craig. Both presenters suggest that gendered ideas about authorship and inventorship cause us to inaccurately distribute rights, devalue certain kinds of work, devalue certain works and discoveries themselves, and may not incentivize the way we want.

What would be the effect of deconstructing the mind/body and other dualisms? Would there be more ownership, for example of traditional works like Native American dances, or less?

I found Farley’s comments fascinating, in part because I didn’t hear the “may not incentivize the way we want” in the presentations or the papers. That is, one reason women’s work has been devalued and invisible is that everyone has assumed – correctly – that a lot of it will still get done even if the market doesn’t recognize it. If you don’t pay a woman to raise her child, she’ll still do it (though she may face many more obstacles). Love works pretty well as an incentive. Likewise with cultural productions like songs, folklore, sewing, cooking, fan fiction, etc.

So one standard economic response, embodied – if I may use such a loaded term – by Mark Lemley, is: We don’t need legal incentives in these fields, so the law doesn’t provide them, but we do need legal incentives to get Hollywood movies. That’s neutrality, from the economic perspective. (Though notice I didn’t mention software, where it turns out that maybe economic incentives aren’t as necessary as the folks in power thought. Our natural-seeming guesses about what needs to be incentivized can be plenty gendered, as Susan Scafidi took up in detail later in the day.)

Farley wasn’t endorsing the economic theory of copyright; she was emphasizing that, if the system is built on economic theory, it doesn’t match the image of the high romantic author – much less is required to get copyright protection. If we want to incentivize all other kinds of production, copyright doesn’t serve that interest all that well. I’m not sure why, except perhaps in the area of clothing design: tiny variations of traditional crafts can also be copyrighted, though the scope of protection will be limited, so there is some economic incentive operating.

Copyright also covers lots of stuff that didn’t need an economic incentive to get produced, but there is an economic rationale: to avoid the nastiness of formalities that individual authors are always going to screw up. So the feminist critique of copyrighting everything and the feminist critique of romantic authorship, it seems to me, are related but distinct – and one important aspect of the latter is that the romantic image obscures the irrelevance of individual genius to actual doctrine and practice.

After some back-and-forth, we agreed that we don’t know what kinds and levels of creation might emerge in a world that valued feminized work. Burk pointed out that copyright and patent might distort investment choices. Certainly there’s debate over whether the scientific grant and patent systems encourage specific sectoral investments instead of, for example, subpatentable innovations. After a little more thought, I believe we’d also have to factor in ways in which market solutions can crowd out nonmarket creativity, which is something the psychological literature on creativity has started to explore. But “valuing” feminized work isn’t necessarily the same as awarding it IP rights, so that might not be a problem.

Burk: The great thing about Craig’s paper is that it takes critical work and gives it a positive agenda. Models of proprietorship and stewardship for cultural objects exist – you have control to maintain, embellish, and improve the work, but it’s not yours; you have to pass it on. Unfortunately, these are being wiped out by dominant Western models.

In response to my question about the work/performance dualism, Craig pointed out that, if authorship is an interpretive process, the divide between copyright and neighboring rights (outside the US) could collapse. Performance rights are devalued internationally because the assumption is that only economic and not personality rights are at stake.

Ann Bartow: Why isn’t there an IP right for the subject of art? Women (and fruit, Burk pointed out) get objectified in painting, photography, movies, any audiovisual work – we’re focused on what women look like, but not on rights women might have.

Burk: Economists would say the answer is contract.

Craig: Treating artists like copyright owners means not giving rights to subjects. She gave an example from proposed Canadian legislation to let the subjects of portrait, wedding, baby, etc. photography make private uses, but the photographers insisted that the subjects’ rights must not be allowed to interfere with their rights to do whatever else they wanted with the pictures.

Farley: Early photographers made their names as celebrity photographers, and celebrities increased their own fame by allowing photos. There was a dispute with a woman celebrity over who had the rights; the photographer won because rights were located in the individual who was seen as creating what was in front of the camera. It was the “woman as still life” idea, as if the subjects had no role in creating the settings, costumes, and facial expressions – though as actors these tended to be from their famous roles. There was one famous early female photographer, who tended to photograph non-famous women and their children.

Peter Jaszi: As I understood what he said, he knows of a case where mothers claimed joint authorship with a school photographer because they carefully dressed and combed their kids in preparation for the picture. They argued their invisible work should be visible, but the court rejected their claim and it was submerged again.

Craig: Joint authorship is a very troubling field. Canada blindly endorsed Childress v. Taylor in a case involving Sarah McLachlan and a singer-songwriter. His contribution was discounted because, though there was an intent for their work to merge and he contributed copyrightable expression, McLachlan never thought he was an author, so there was no joint authorship. England, which dismisses the relevance of intent, might do it better.

Burk: Congress is increasingly aware of problems with patent law arising from the fact that much invention occurs in groups. There are problems with novelty and nonobviousness because Group A and Group B may have overlapping members, and an inventor may discover that she’s anticipated herself if she’s a member of both. Congress is trying to amend the law, but only to help corporate ownership; the need for change is not well theorized.

Josh Sarnoff: Student lab workers’ contributions are devalued, not counted as part of the inventive process, but what’s the political result? Even if they got formal rights, labs would just make them sign those rights away.

Laura Heymann: Here’s a possible metaphor: Perhaps work for hire status is about who gets to claim paternity, not who gave birth to the work. But patent retains a more maternal concept: the requirement that the inventor be named is a requirement that we see the invention come out of that inventor’s being, like physical birth. (But do we ever, with patent or copyright? One can always be “creating” something that already existed, either in copyright with unconscious copying or patent with independent creation of an already-existing invention. Works and inventions aren’t children.)

Burk: You might expect the gender values to be going in a different direction, with patent being masculine compared to copyright. It’s worth investigating – there is literature on the historical development of publishing in the UK and parallels between copyright and family law. Men were allowed to make money from wives’ and children’s labor, as owners of right, just as with copyright; we don’t know as much about patent history.

Craig: In Canada, it’s the other way around. Canada is a first-to-file jurisdiction for patent, whereas in copyright authors always retain moral rights.

Heymann: Is there an original text that begins a dialogue and thus occupies a special place of authority?

Craig: No. Even if people identify one text as special, it always exists in a context and a network of meanings.