Thomas Jefferson School of Law, Feb. 9, 2007
Panel 1, What a Girl Wants: The Theoretical Underpinnings of Gender & IP
Moderated by Julie Cromer, Thomas Jefferson
Doris Estelle Long, John Marshall Law School, Women’s Art, Women’s Truth: Gender Discrimination and the Battle to Protect Traditional Knowledge
Perhaps surprisingly, traditional knowledge became an international IP issue at the same time as the internet did. Definition: tradition-based works, whether innovative, creative, or culturally expressive, transmitted through the generations. These arts got kicked out of copyright early on.
Traditional knowledge is relational. It is based on traditional needs, collaborative, collective, transmitted through time. Practitioners speak of it in terms of caregiving, spiritual connection, sacredness – an emotional, social process. Think of all that we denigrate as “artsy-craftsy” – not worthy of protection because it’s not serious. “Craft labor” is seen as not creative enough to participate in copyright.
Women were authors in the 18th century, but as it began to move into the public sphere, there was a similar debate over how to value women’s writings (sentimental, emotional, not quite literature, prostitution-like) and women’s art. Women’s three basic roles: caregiver/nurturer, hearth/home arts, food – the woman as the center of the family. In indigenous groups, caregiving isn’t just children, but healing arts, use of plants for medicine – even traditional knowledge about seeds. They are repositories of traditional knowledge, storytelling, training in traditional arts. When it comes to copyright, these all suffer from being not quite original enough.
She gave a number of examples of celebrating traditional knowledge that involved, necessarily, celebrating the contributions of women, especially old women – grandmothers.
The same issues occur in the mainstream copyright market. By 1850, women were writing all sorts of works for large-scale publication; some women perceived themselves as professional authors. By 1890, 50% of US bestsellers were written by women. All of a sudden, we hear all of the language about women’s literature – sentimental, gothic, romances, not “serious” literature. Women’s writings aren’t part of the canon. Still happening today – “chick lit” – terminology that says that what women are creating doesn’t fit within our model.
Lesson: protecting TK will be a lot harder than some think, because it has to deal with gender stereotypes as well as other biases about what copyright should cover. Women need to be empowered to participate in the debate, as major carriers of tradition. Moral/spiritual connections need to be reaffirmed.
Panamanian molas: women now make blue molas for the export market, because apparently tourists like blue even though it’s nontraditional. They’re still using their traditional skills – and they still have designs they won’t share with us. These are the types of problems protection for traditional knowledge needs to address.
Dr. Carys Craig, Osgoode Hall Law School, Beyond Author v. Public: Relational Authors and the Public Interest
Craig is generally a restrictionist, but that stance is often vulnerable to the charge of neglecting the interests of authors in favor of the public. Canada, with Quebec’s civil law/moral rights system, offers a microcosm of the international clash between utilitarian/public interest and authors’ rights perspectives. Are the groups destined to talk past one another?
Craig’s work draws on feminist literary and political theory, which has made her more resistant to the criticism that she’s unduly instrumentalizing the author. The idea of balance is a metaphor, but one that requires us to divide the author from the public and pit them against one another. This dichotomy is illusive.
Canada introduced users’ rights in 2004, but it might do more harm than good by proliferating rights talk in IP policy. It reduces the public interest to an individualizable claim and focuses us on entitlement claims rather than the goals and consequences of the system.
Utilitarian justification for copyright in the US: does it reduce the author to a means to the public’s ends? The theory implies an opposition between author and public by prioritizing the public, and rejects the notion that the author’s relation to her work is important in its own right or has any relevance to copyright policy. But there’s a clear lay sense that the processes of authorship have significance to authors that can’t be reduced to financial incentives. Artists often insist that attribution and acknowledgement are more important to them than control and remuneration.
What can feminist theory do to help? A relational feminist account of authorship would recognize the author as embedded in her community, creating out of those discourses and texts around her. The community is involved as source and anticipated audience. Likewise, dialogic feminism emphasizes discourse, narrative, participation, all of which can enrich our understanding of authorship in copyright as a way in which authors can participate in the shaping of the world. This approach values authorship in its own right as a way to generate meaning and engagement in the world, but also contains its own limits – authorship must leave space for others to enter the cultural frame.
Copyright is a triadic relationship between the author, the public, and the work. No “pure” approach will work, whether focused on the author-work dyad (author’s rights) or on the public-work dyad (utilitarian approach). Feminist relational theory can help us break down the self/society divide and thus break down the author/public divide.
Ann Bartow, South Carolina Law School, Women in the Web of Secondary Copyright Liability and Internet Filtering
Her thesis, which can be seen in greater detail in her article: Internet law was characterized as “the law of the horse,” but it’s really “the law of the stallion.” The legal scholarship doesn’t recognize the web as it exists for women. Scholars hope and believe that the bodilessness of cyberspace erases gender, when all it does is erase the recognition of women as subjects (unless we fight for it). Anonymity facilitates abusive sexism online.
Theorists largely ignore porn: Yochai Benkler wrote a grand theory of the internet and peer production and doesn’t have a single word to say about porn. Did he not see it? Did he not think it worth talking about? We get lots of theorizing about the liberatory prospects of online games, but very few looks at the avatars available for women, which have distorted bodies and lots of skin showing. Second Life has “rape role play” games for participants to play (because, Bartow says, “apparently they think they want that”). There’s a game called Rape Lay specifically for players who want to rape unwilling characters. (NB: I love Ann and I love Ann’s works, together and separately. I too am appalled by Rape Lay. But I have serious problems with singling out rape fantasies without more careful examination of what functions they serve and what they are likely to mean for real women.)
There’s lots of essentializing women in discussions of “what women want” from games. The games’ “magic circles” exclude most women. Sexual harassment is pervasively tolerated and women who complain are further harassed. There are no data on gender or race of participants in online games or for a. On the internet no one knows you’re a dog, but what’s wrong with being a dog? Why is it liberating to not to “have” to be a woman?
Women are becoming content, in games and elsewhere. Anonymity is valuable, but it also enables discrimination and harassment. Cyberspaces are simply less amenable to women who identify as women, and there’s little in the way of legal recourse.
Cheryl Preston, J. Reuben Clark School of Law (BYU), Internet Autonomy and Intimacy
In the past, Preston has argued over whether a feminist focus on porn made strategic sense. We should, she concluded, redirect our energies from censorship to non-law avenues to put economic pressure on companies that use sexist advertising even in nonpornographic ways.
It’s time to revisit the issue. This is not your grandma’s porn. Quantity, reach, and nature all differ. Amateurs are “in,” and everyone is trying to make some money off of linking, showing pictures of amateurs, etc. Numbers of porn pages have exploded. There’s no way to impose norms on a porn site, to picket it, to shame the owner in front of his community. Teenagers have easy access to porn. Young girls are feeling the pressure to perform the acts they see and that boys have seen. You don’t have to take many risks to access pornography, to find things that didn’t exist in your state ten years ago.
What should be done? It is difficult – impossible – to speak for all women at once, but now we can perhaps make some choices about what will be allowed on our own (our family, our university, our work) computers. We can also bring more real life context to the abstract censorship debates. Women have an interest in sexual pleasure, but we live in a society dominated by men, and we are the guardians for most children. We need to protect our children from their inability to think through consequences – boys want to experience pornography, but they think that someday they want to find a life partner who isn’t a slut. (I don’t see that it’s the porn, as opposed to the double standard, that’s the problem – though I accept that the porn is likely itself to carry the message that the girls who participate are sluts and the boys are awesome.)
We’ve ignored women’s right to be left alone, even on computers. We need to debate porn as we know it – as it comes into our homes – now.
Notable comments: In response to questions, Preston said that porn users consume so much bandwidth that we’re all subsidizing them, and families should have a choice – in contradiction to “net neutrality” proposals – to only pay for “community use.”
Women who use pornography use it for relational purposes – they look at images, then enter chat rooms. Men who use it don’t want to interact.
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