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Feminism and Copyright Revisited

10 March 2019

From Hugh Stephens Blog:

A few weeks ago I put my foot tenderly into the minefield of feminism, arguing in a blog “What Does Feminism have to with Copyright in Canada”, that statements made by Carys Craig, a law professor at York University to the effect that robust copyright protections were anti-feminist were off base. My argument was that copyright laws, unlike law in some other areas, is gender-blind and in fact copyright has been an important factor in strengthening protection and welfare for all creators, both male and female. To ensure my message got out, I tweeted it as well as posting it on my blog.

Perhaps not surprisingly this set off a twitter-storm of comment from several prominent feminists. Dr. Craig took me to task for “explaining” (she didn’t say “mansplaining” but that is the way I read it) to her “and others on the ‘feminist policy bandwagon’ that copyright is ‘totally gender blind’, so not an area of bias and discrimination; and (that) barriers to education, tech change and creativity are not feminist issues”. Indeed I did claim (does arguing a position amount to “explaining”?) that copyright is gender blind and thus should not be a target of feminists, but I did not say that education, tech change and creativity are not feminist issues. Of course they are. It’s just that these issues should not be conflated with copyright. As for the “feminist policy bandwagon”, what I actually said was that the Trudeau government had such a bandwagon that Dr. Craig and other anti-copyright activists were attempting to climb aboard.

My post provoked some other interesting comments as well. One comment said “I like how he admits ‘there are incontrovertible areas of bias and discrimination against women’ and then asserts that copyright is not one of them. Because the patriarchy took the day off when copyright legislation was enacted?” No, the “patriarchy” was alive and well when copyright laws were drafted and the drafters most certainly had no intention of promoting a feminist agenda. That is a fact. It is also a fact that in crafting copyright laws, they made no reference to gender. Copyright laws have always given equal protection to authors, whether they be male or female. In fact, writing is one of the areas of early artistic and economic liberation for females (Jane Austen, George Eliot, the Brontë sisters, Louisa May Alcott and so on). So whether some of today’s feminists like it or not, while there is plenty of evidence of discrimination against females, copyright was not part it.

. . . .

Pierre Lesburguères of IFFRO (the International Federation of Reproduction Rights Organisations) pointed out that “studies have shown that copyright-based/creative industries employ more women and offer them better working conditions than other sectors. This was demonstrated…in a creative mapping project undertaken in the Gauteng province (South Africa) referenced in a UNESCO report.” Catherine Easton, Lecturer in Law at Lancaster University (UK), responded with “So, so many issues! Some summarized in the IP chapter here” (Chapter 11 of Great Debates in Gender and Law, Rosemary Auchmuty). This sounded interesting so at great pain and expense I procured a copy from Britain.

I did not expect a book with that particular title to make strong arguments that the law is an exemplar of gender equality—and I was not disappointed! The IP chapter is quite short, and focuses on both patents and copyright law. Part One on patents points out the historically low rate of female patent holders, a situation still current today despite much greater rates of female participation in the fields of science and engineering. Various hypotheses are advanced to try to explain this phenomenon, and since this is a blog on copyright issues, I won’t dwell on this. (Buy the book). One of the areas that differentiates patents from copyright is the requirement for strict registration but even with a name registration system for patents, there is no requirement to indicate the gender of the applicant. Resort is then made to name-matching analysis to identify gender, which no doubt works well when the patent holder is a William or a Robert or a Susan or a Mary. But what about those androgynous names like Ashley, Beverley, Jesse, Oakley, Sydney etc.? Needless to say, identifying male or female patent holders is an inexact science. But let’s talk about copyright.

Dr. Easton points out that while the low number of female patent holders is a statistically verifiable indication of gender disparities in IP law, copyright is more nuanced because it requires no formal registration as per the Berne Convention. If one assumes that access to registration and other barriers to entry help explain low rates of female participation in the patent system, clearly that does not apply to copyright. The series of academic conferences that culminated in the Berne Convention of 1886 focused on securing international copyright standards and ensuring ease of protection. The author advances the thesis that the individualized protection of artistic and literary works embodied in Berne harms “collective production of knowledge”, which she claims is often carried out by women. She uses the example of knitting patterns as an example, suggesting that assertions of copyright over knitting patterns hamper organic creative development. If women dominate knitting, I fail to understand how there can be any gender discrimination in this field of creativity since some women will benefit from better copyright protection for knitting patterns while others may complain that copyright laws hinder their creative efforts. That is a debate that pro and anti-copyright

On the subject of knitting, I wrote a blog on this topic a couple of years ago inspired by the story of Joanne Sieff, a Canadian writer tired of having her books on knitting and textiles ripped off and posted on the internet without authorization. She commented that, in her experience, copyright violation in knitting and crocheting is frequently disparaged as unimportant because it is a predominantly (but not exclusively) female industry. It is seen by some as a “cottage industry” with women earning “pin money” and therefore not taken seriously, yet production and licensing of knitting patterns is an important home-based industry for many women. There are designers who make a full time living off pattern design, often selling on multiple platforms. The knitting site Ravelry has an active sales category for those who earn more than $1500 a month–just in pattern downloads. What we would appear to have in the knitting world is full gender parity from the point of view of piracy and disrespect for rights-holders, in this case with both the pirates and the victims being predominantly female.

Link to the rest at Hugh Stephens Blog

PG claims no expertise in things Canadian, including, without limitation, Canadian feminism or the impact of discrimination of any sort on Canadian copyright protection.

In the United States, copyright protection is available to any person who is the creator of a wide range of works. The price for online registration of a work created by a single author is $35. Other online registrations require a fee of $55. A two-page explanation of the online registration process is found here. A Powerpoint walking through the registration process can be downloaded here. There is no provision for the designation of gender in this form. For any persons who do not wish to disclose their out of a concern of disclosing gender, the Copyright Office provides the option of registering work under a pseudonym. An author can also register under their real name and publish their work using a pseudonym.

The copyright office does recommend that an author contact an attorney for advice if the author is not going to reveal a real name in the application. Some states have fictitious business name registration requirements that may be triggered by operating a business under a pseudonym. The creation of a trust, corporation or similar entity can be used to provide further anonymity protections for an author if desired.

PG doesn’t see any way in which the US Copyright laws and regulations discriminate against women in any manner. Absent unusual circumstances, registration of a copyright is a purely mechanical process with no attention paid to the nature of the author or the protected works so long as the minimal formalities of the registration process are observed.

 

Copyright/Intellectual Property, Non-US

20 Comments to “Feminism and Copyright Revisited”

  1. Three areas that I have seen show up in the broader arguments are partially referenced in the OP.

    1. Like with the knitting example, there is an argument that copyright protection was extended to things the men writing the legislation deemed to be of economic value — so since knitting was just women’s work, patterns aren’t protected.

    2. In addition, in industries that do often involve copyright protection, such as writing, the history has not often been one of parity, even if some examples in the OP are shown. Kind of like arguing someone isn’t racist because they have some nice black friends. In the academic world, for example, women academics are frequently not given prominent citation, and may even be dropped. In romance areas, some of the biggest copyright scandals of the last ten years have involved companies screwing over groups of authors who were predominantly (?) / significantly (?) female.

    3. In other areas, such as music, part of the argument is that they are disadvantaged in negotiations, underrepresented in regulatory groups, etc.

    Blind or neutral doesn’t mean equality if the access to what is covered, or who is given credit, or who has a voice in negotiations are all biased in favour of male participants in the eco-system.

    Or at least, that’s what I’ve been told / heard. I don’t want to be accused of mansplaining either, or suggesting that the equivalent for women would be to accuse them of simply being hysterical (which would seem equally offensive to me, but what do I know).

    P.

  2. In other areas, such as music, part of the argument is that they are disadvantaged in negotiations, underrepresented in regulatory groups, etc.

    Almost all authors are in a terrible negotiating position with publishers or Amazon KDP. Do feminists see that as a reason to eliminate copyright?

    • For that matter, why expect the assertion by one academic that copyright is a feminist matter to represent the thinking of feminists everwhere? Or anybody’s thinking but their own?

      Too many people wrap themselves in ideological labels to disguise their actual goals or to prop up hollow Propositions.

      When it comes to copyright there is the whole “information wants to be free” camp that is opposed to copyright’s very existence, constantly fishing for excuses to justify their philosophy, without much to show for their efforts across the decades. Trying to cast it as a feminist issue is just another futile exercise. PETA at least had some trivial, temporary success casting it as an animal rights issue.

      This looks to be more of a tempest in a thimble with nothing meaningful to say about copyright or feminism.

  3. The prof that the OP was responding to done wrote a book.

    https://www.amazon.com/Copyright-Communication-Culture-Towards-Relational/dp/1848448392

    Summary – make of it what you will…

    In this provocative book, Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity.

    Employing both theoretical argument and doctrinal analysis, including the novel use of feminist theory, the author explores how the assumptions of modern copyright result in law that frequently restricts the kinds of expressive activities it ought to encourage. In contrast, Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a vibrant, participatory culture. Through a critical examination of the doctrines of originality and fair dealing, as well as the relationship between copyright and freedom of expression, she explores how this relational theory of copyright law could further the public purposes of the copyright system and the social values it embodies.

    This unique and insightful study will be of great interest to students and scholars of intellectual property, communications, cultural studies, feminist theory and the arts and humanities.

    • I don’t usually do this but I checked the book’s stats:

      Product details
      Hardcover: 288 pages
      Publisher: Edward Elgar Pub (September 29, 2011)
      Language: English
      ISBN-10: 1848448392
      ISBN-13: 978-1848448391
      Product Dimensions: 6.2 x 0.8 x 9.5 inches
      Shipping Weight: 1.3 pounds (View shipping rates and policies)
      Average Customer Review: Be the first to review this item
      Amazon Best Sellers Rank: #6,850,022 in Books (See Top 100 in Books)
      #662 in Books > Law > Intellectual Property > Patent, Trademark & Copyright > Copyright
      #1377 in Books > Politics & Social Sciences > Politics & Government > Public Affairs & Policy > Cultural Policy
      #16754 in Books > Textbooks > Social Sciences > Political Science > Public Policy

      Don’t think there’s much chance of those particular ideas being picked up in the next wave of copyright reform.

    • I can’t wait to learn abut the “dialogic account of authorship.”

    • Did he copyright it?

  4. Just as a point of fact, it’s important to be clear about what involves copyright and what does not. The biggest scandal I’m aware of (and was involved in) concerning a publisher exploiting mostly women romance writers involved breach of contract rather than copyright.

    • Thank you, I was wondering where the copyright oppression was coming from. Did the authors get to keep their copyrights or not? If yes, excellent. If not, problem.

      I am confused by why the OP has a controversy, because I didn’t see anyone ever indicate that women were turned down for copyright applications. Nor did I see that it was impossible for women to file for copyright violations.

      • Jamie, in the class-action breach-of-contract suit that I was involved in, the authors had retained their copyrights. The issue concerned self-dealing in digital subsidiary rights. The publisher had basically licensed the books to their own wholly owned e-publishing subsidiary for a ridiculously low amount and then paid the authors a royalty percentage of that low amount instead of on the total income from the ebooks. After several hard-fought years, the case was settled out of court for a reasonable payment (but no punitive damages).

        I am not aware of any copyright discrimination against women.

        • Sorry, I unintentionally conflated the two situations in my reply. I had meant that for the purposes of determining whether women are discriminated against in copyright application / enforcement, the case you speak of is good, because it indicates copyright discrimination isn’t happening.

          I agree it’s bad for the contracts to be breached, and for authors to be cheated out of income. I’m against that sort of thing by default 🙂

  5. The Dr. Easton from the OP whines about not being able to profit from other people’s work:

    “The Harry Potter and Twilight books and films are examples of works that have spawned extensive fan fiction communities … mainly carried out by women … Fan fiction is an example of another area of IP law in which predominantly female creativity has been marginalised through the framework of legal protection”. (emphasis added by the blogger in both cases).

    Poor Easton. I can’t help but notice she’s oppressed because she’s not legally able to rip off JK Rowling and Stephanie Meyer, who are both women. I wonder what would happen if we put her and Joanne Sieff — the knitting lady whose patterns have been pirated — in the same room …

    I also wonder if she would consider the expanded universes of Star Trek et al (via the novels) to be a form of fan fiction. Lots of women — and men! — have plied their trade in that particular brand of fan fiction.

    • I think we’re onto something. If some of the women who want to make money off Harry are black, does intersectional feminism see copyright as racist? Remember, the guys who included the copyright stuff in the Constitution were all white men.

      • Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a vibrant, participatory culture.

        I went and looked up dialogic on Wikipedia.

        The dialogic work carries on a continual dialogue with other works of literature and other authors. It does not merely answer, correct, silence, or extend a previous work, but informs and is continually informed by the previous work.

        So that would make sense. This is basically complaining about copyright enforcement in fan-fiction (dialogic authorship) forums (vibrant participatory culture) all dressed up in academic bs.

    • Why can’t she just join all the writers producing Jane Austen fan fiction? No copyright or plagiarism problems and they get to sell it on Amazon and don’t even have the stigma of writing fan fiction (it’s “Pride and Prejudice Variations”).

      • I can’t get into the heads of people who want to profit from the works of others … but I’m wondering if her beef is that Harry and Bella are worldwide phenomena, but Elizabeth is more “niche”? There may be more money in one “franchise” than the other.

        But Easton could test this if she set up a “Pride and Prejudice” universe, like the Star Trek universe, and invited paid writers to write in it. You could get a “Death at Pemberley,” or the Bennett sisters fighting zombies in a given “continuity.”

  6. I’m annoyed at the US Copyright Office right now.

    They refused to register my copyright on my latest novella.

    When I talked to a rep on the phone, she explained that the novella was not a “single work” and that it therefore could not be registered under the $35 fee schedule.

    She went on to accuse me of trying to gouge the eCO out of its rightful money!

    The reason she gave for my book not being a “single work”? It has appendices!

    I could appeal this decision, so long as I am willing to pay $245 for the privilege. But I think I’ll just cave and pay another $55 to register the book under the higher fee schedule.

    Appendices? Really?

    I am not gouging the eCO. The eCO is gouging me!

  7. I never saw on the site that one couldn’t register a novella for the standard electronic rate. Did that recently change, too?

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