Feminism and Copyright Revisited

A few weeks ago I put my foot tenderly into the minefield of feminism, arguing in a blogWhat 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.

Ah, but one commentator said, without explanation, “totally gender blind is not by any means gender neutral”. Another took me to task by commenting “Saying ‘but the law applies equally to men and women is so 1980s”, because “facially neutral laws are skewed by the biases and assumptions of their makers”. It is hard to argue against this kind of non-specific assertion. To me a traffic sign that says “School Zone 30km”—to use a simple example– applies to all drivers, male or female, without any “biases or assumptions” built in by the drafter of the law, just as copyright law does. But what do I know? I guess someone needs to “explain” it to me.

In any event, getting an exchange going on Twitter is a good thing, as long as the exchange is conducted respectfully, which I think it was. The last thing we need is to reside in our own bubble. The blog got a lot of readership, some of whom I am sure had never read it before. Therefore, a good outcome. There were other comments in the exchange that I also found interesting— less defensive and more helpful.

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 advocates can have but it has nothing to do with gender inequality.

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.

Another example cited by Dr. Easton is “fan fiction” (new work emanating from original, copyrighted work, normally written by non-professional “fans”). Fan fiction is a controversial area with several notable cases being brought against fan-authors by copyright holders in the US. In most cases, the fair use defence did not prevail. While the summary of cases makes no mention of any gender element in these cases (except that one of the most prominent litigants is a woman, JK Rowling), Dr. Easton nonetheless suggests that copyright limitations on fan fiction discriminate against women;

“The Harry Potter and Twilight books and films are examples of works that have spawned extensive fan fiction communities, strengthening end-user connections to the works and creating new, dynamic, interactive worlds. The internet provides a space, free from fixed structures and identities, that has facilitated collaborative production, mainly carried out by women, in a reflection of the discussion on craft protection above. In the UK…the rights of an original author can be infringed if a substantial aspect of that original work is used…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 in both cases).

No evidence is offered for the statement that collaborative production of fan fiction is primarily female based, and without that evidence the complaint against the limitations on using copyrighted material are just that—complaints about how copyright works, not complaints about gender. Talk about stretching logic to try to substantiate gender discrimination without providing a shred of evidence that it exists! For a concrete example, perhaps we should ask JK Rowling for her views on Harry Potter knock offs. She and her publisher were quick to sue when an unauthorized Harry Potter book, “Harry Potter and Leopard Walk up to Dragon”, appeared in China, “adapting” the story and characters in a mish-mash of Potter characters and Chinese dragons. Perhaps we could call this “fan fiction”? She is also well-known for litigating (and winning) against the creator of “The Harry Potter Lexicon”, fan-author Steven Vander Ark and his publisher, RDR Books.

Back to Dr. Easton, who concludes her analysis by saying:

While copyright law may operate under a substantive guise of neutrality it is its wider application, particularly in relation to commercialisation, that leads to an unequal enjoyment of the wealth created by the legal framework”.

This is based on the argument that copyright law protects the “accepted mainstream” (i.e. individual creators), while so-called outsider groups, including women, have been marginalised. “Collective, collaborative, responsive, community-based forms of creation are not protected on the same basis as the mainstream”.

An argument can be made for that position. Copyright is very much focussed on individual creators although, as we know, there is provision in copyright law for joint copyright. However, one has to accept as an article of faith that women are more collective, collaborative and responsive than men, and are therefore less involved in or adept at individual (“mainstream”) creativity, if one is to accept the corollary that copyright is gender unequal. To equate women rather than just certain groups of people with these characteristics sounds to me like gender stereotyping or gender essentialism. The characterization is a dubious proposition at best and one that I am sure would not be shared by successful individual female creators and rights-holders.

Will I convince any of my critics? I doubt it. At least I hope they will accept that I am trying to make substantiated fact-based arguments on the gender-neutrality of copyright, instead of “explaining” it to them. Well, I am going to publish and see what the twitterverse has to say. Stay tuned.

© Hugh Stephens 2019. All Rights Reserved.


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