Copyright and Patent law is rooted in the patriarchy and has always discriminated against women

Copyright and patent regimes evolved from and continue to rely upon patriarchal notions of the individual ‘creative genius’ and the ‘inventor paradigm’ – both whom were envisioned as male. Historically, copyright protection was only addressed to the ‘high arts’ of sculpture, painting, literature and music – fields dominated by men, excluding (until recently) female ‘crafts’ such as needlework, knitting and quilting (Wright Citation1994).

Feminist critics point out that it is women’s labour and their attendance to social reproduction functions which allow men to immerse themselves in the production of knowledge and art, and that individual works of (male) authorship are therefore impossible (Halbert Citation2006). Even today, white male authors are significantly over-represented in copyright registrations in the US (Brauneis and Olia Citation2018). Similarly, feminist scholars have critiqued the ‘inventor paradigm’ of patent law (Gearhart-Serna Citation2009). Women have long been excluded from the inventor role by lack of access to the resources that would allow them to claim patents, and by misogynistic public cultures that devalue women as original, novel authors and inventors. More directly, the inventor paradigm encodes values and epistemologies which are inherently male and Western, and devalues non-conforming knowledge systems (Gearhart-Serna Citation2009). Consider ‘traditional knowledge’, a community based resource, held by and passed down within communities. Traditional knowledge has been associated with indigenous subjecthood and gendered feminine – it is seen as ‘instinctive and pre-modern’ in contrast to the scientific, rational, developed ways of knowing, epistemically associated with masculinity (Gearhart-Serna Citation2009).

In addition, the requirement for a discernible author or set of authors arises from eighteenth century Eurocentric conceptions of the creative process (Burk Citation2007). The political economy of cultural production excludes or marginalizes women, forcing them to participate as males – or relegating them to the status of inspirers or emotional supporters for men’s cultural creation (Halbert Citation2006).

Collective forms of production such as folklore and oral traditions are not regarded as eligible for protection until appropriated and fixed in a tangible medium amenable to market exchange (Halbert Citation2006). The Lockean fiction of the individual creative genius at the centre of knowledge production, thus begins to fall apart when questioned; it successfully obscures the relational nature of the creative process as a web deeply interwoven with the work of other social actors and built upon existing hierarchies and asymmetries.