By Munyonzwe Hamalengwa
With an increasing number of women occupying positions of power
globally, hopes are rising that these women will use their
intellectual property to advocate for full and equal recognition and
status for fellow women
Women have now climbed to the highest apex of judicial power in a
number of countries. They have also climbed higher in positions of
power in several countries. Both the chief justice and deputy chief
justice in Zambia as of mid-2012 were female jurists. The chief
justice of Nigeria is female. The chief justice of Canada is female
and she has two other female jurists alongside her. The chief justice
of Sri Lanka as at the end of 2012 is female. The US Supreme Court has
three female justices. In 2012, the congress of the United States
elected more women to its senate than at any other time in the history
of that institution. Rwanda's legislature has more than 55 per cent
women. Women in South Africa have held significant posts in their
parliament, as have women in Canada. There are female presidents in
Germany, Liberia, Malawi, Jamaica, Chile, Brazil and elsewhere.
Given that this is an economically globalised world, where
technological knowledge is power, women are poised to increasingly
influence the diffusion of knowledge. Whoever controls the technology
controls the power. One aspect of technological control revolves
around the influence 'intellectual property' ownership engenders. This
in turn relates to who controls the law of intellectual property.
This article discusses how men have controlled intellectual property
regimes both in law and politics and whether the increasing number of
women in the judiciary and politics will affect this important area of
legal and political discourse. I begin the discussion with how law has
been regarded historically and the intellectual challenges that view
has been subjected to.
Feminism, along with Marxism, Critical Legal Studies and Critical Race
Theories have mounted serious challenges to the inherited western
legal tradition that has claimed that law is neutral and objective
even though law, from time immemorial has neither been class, gender
and race neutral nor objective. There was a time when slaves, poor
people, aboriginals, women and blacks could not vote; when women,
aboriginals and blacks could not serve on juries or go to school; when
women, aboriginals and blacks could not own property; indeed when
blacks were the property of others themselves; when women could not
enter into contracts; when women, aboriginals and blacks could not be
lawyers; when blacks could not enter a room or drink water through the
door or fountain used by white people; when blacks and aboriginals
were enslaved or colonised; when women and black people's evidence in
courtrooms was only accorded half the value of evidence given by a
white man, and so forth. Yet law managed to claim and still claims
that it is neutral and objective.
The assault of feminism, Marxism, Critical Legal Studies and Critical
Race Theories on the supposed neutrality and objectivism of the
western legal system has to some great extent engendered palpable
paradigm shifts and intellectual understandings of the actual designs
of the law and along the way, major reforms have occurred: women and
black peoples' evidence is accorded on the surface the same weight as
that of the white men; anyone can serve on the jury and can vote and
go to school and slavery is prohibited ; women can enter into
contracts and own property. But there are still major problems
experienced by women, aboriginals and the developing world in gaining
full and equal recognition and status in the dispensation of
intellectual property law. Feminism is perhaps the most potent
intellectual current that is deconstructing this area of legal
impairment.
Feminism, Marxism, Critical Legal Studies and Critical Race Theories,
while aimed at deconstructing the actual design of the law and the
purposes served by law and in whose interests and to whose
disadvantage law is generally deployed, approach the analysis of law
from different situational and experiential perspectives: feminism
examines the law from the point of view of the interests of women;
Marxism from a class point of view; critical legal studies from power
relations point of view and critical race theorists from the point of
view of race dynamics. These systems however are not totally exclusive
or totally dismissive of other perspectives (though Marxism comes
close in dismissing other perspectives and seeks dominance). Further,
within some of these perspectives are contained various strands of
thought: in feminism for example, there are Marxist, socialist,
radical, conservative and liberal feminisms and other strands that I
have just recently encountered, for example 'difference feminism'. All
these strands emphasise different aspects of concerns within the
feminist framework.
While aware of the different strands within feminism, several feminist
intellectual property scholars emphasise the need for a clear-cut
broad dichotomy between female perspectives as a group and the male-
oriented and designed legal constructs on the other hand. Only by
looking at it in this polar-opposite way can the phenomena being
examined be brought out in clear and sharper perspective. Women and
men have broadly experienced law differentially. This includes
intellectual property. While feminism has examined many other areas of
the law and exposed their chicanery- family law, criminal law (rape,
prostitution, evidence), property law, immigration law, contract law
employment law, business law and others, feminism has not looked at
the impact of intellectual property law until recently. But like the
other areas of law, intellectual property was male designed and male
oriented to the total exclusion of the interests of women.
Intellectual property law as designed by men was totally inimical to
the interests and nature of women, qua women. Like many areas of law,
intellectual property therefore has gendered aspects. Each of the
articles described below gives examples of this gendered nature of
intellectual property law.
Burk in 'Copyright and Feminism,' states that the neglect of
intellectual property in feminist analysis is surprising given its
increasing prominence and potential impact on the quality of life for
millions of men and women across the world. In another article, Burk,
in 'Feminism and Dualism' http://ssrn.com/abstract= 928421 states that
intellectual property law constitutes perhaps the primary policy tool
by which society influences the development and design of new
technologies. Others have stated that intellectual property is the
most potent form of modern imperialism. Intellectual property as it is
designed expropriates the inventions and cultural artefacts of not
only women but developing countries and aboriginal communities as
well, to their disadvantage. So, studying and deconstructing
intellectual property is of the utmost importance.
Why is the feminist framework important in analysing intellectual
property? Burk answers that 'a feminist approach encourages us to ask
not so much where such intellectual property doctrines require us to
draw the line between creativity that is rewarded and creativity that
is not, as it requires us to ask why such criteria was selected in the
first instance' . Why is intellectual property designed the way it is:
gendered if you look at it from a feminist perspective; class oriented
if it is examined from a Marxist perspective; racially and culturally
and nationally specific (or developed and developing world-divide) if
you examine it from the critical race perspective--a perspective that
is inclusive of aboriginal perspective and power-driven if you examine
it from the critical legal studies framework.
Bartow in 'Fair Use. seems to answer this question perfectly: 'Many
substantive bodies of law have fairly obvious gendered aspects' as
already mentioned. Not only that but, 'copyright laws were written by
men to embody a male vision of the ways in which creativity and
commence should intersect.' . On top of this, 'men dominate congress
{law making body} and the federal judiciary {law interpreting body'.
Men have defined key copyright concepts such as 'authorship',
'protectibility', "i;infringement" and related terms. Men defined that
copyrightable items must constitute saleable croperty"--a masculine
construct according to Burk, best suited for 'industrialised
commoditization" and this realm excluded arts and crafts which were
consigned to the domestic realm. This realm was populated by women.
Commercial exploitation is the subject of copyright.
Intellectual property has had the effect of the marginalisation of
women's work and creativity. Pollack in 'Towards a Feminist Theory'
covers this well in her article. Intellectual property ignored to
cover areas of practice engaged in by women: food and the clothing
processing industry. Intellectual property rewarded the so-called
individualist and solitary productions of single actors (men)
exemplified by copyright grants to authors - mainly men - and patent
grants to sole inventors-mainly men to the exclusion of communal,
collective and group endeavours engaged in by women.
Shelly Wright in 'A Feminist Exploration' examines at length how
'intellectual property law may be implicated in the exclusion of women
and the denigration of an artistic tradition where women have
contributed: the English novel and needlework" . From the beginning of
copyright law regime in England, 'female painters, sculptures,
engravers, printers and craftsmen were largely ignored by the artistic
establishment' and this tradition continues to some extent in the
present times. Another clear example of gendered relationships in
intellectual property that is commonly discussed is that of food and
clothing processing. The exclusion of food and clothing processing
from the copyright regime is gendered.
Pollack argues that since 1976, genderisation of intellectual property
has increased because of Congress's enlargement of private ownership
rights at the expense of the public domain, which Pollack claims to be
inherently feminine (female). The reasons for characterizing the
public domain as feminine are the following: it is not commodified; it
recognises the communal roots of creation, rather than the atomised
solitary and romanticised individual "author" or "inventor"; the
public domain is concerned with "nurturing" and it provides essential
nourishment by the 'birthing and lactating mother'.
As these articles reveal, feminism has much to tell us about
intellectual property law. It also has a lot to tell us about modern
intellectual imperialism, a contributing factor to poverty in the
developing world and the marginalization of aboriginal communities in
the developed world. Will women judges now untangle the untangle-able?
Munyonzwe Hamalengwa practices law in Toronto, Canada and is the
author of The Politics of Judicial Diversity and Transformation
(2012).
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