The 1AC perpetuates a sexual dualism that reinforces stereotypical and normative modes of exclusion---only a feminist epistemology can interrogate the masculine discourse of the plan.

Intellectual Property Rights have been praised and appreciated for their sincere efforts towards the protection of knowledge and original thought. However, for the law to preserve these rights, it is imperative to probe the construction of knowledge which is sought to be protected. This article attempts to view the regime of intellectual property right through a feminist lens and aim to evaluate the patriarchal underpinnings and gendered assumptions. The creation of knowledge and involvement in the cultural production of goods, has been quite dominated by men. Thus, the law which was created (by men themselves) aimed to shield the status quo, with no considerations of feminist epistemology.

This approach warrants us to navigate questions as – Why do ‘only certain’ creations of literature or art deserve protection? Why are traditional categories excluded from the purview of copyright? The answer to these questions lie in an interdisciplinary analysis of the copyright regime, which transcends from a socio-cultural paradigm. The objective of this study is to provoke a multi-stakeholder dialogue in order to prevent the marginalization of work created by women.

The objective of copyright law is to encourage participation and incentivise authors to create work. However, there exists a need to make the work accessible in the public domain and thus, the law tends to favour certain ‘creative and original’ creations of work, while deeming the rest to be “unlawful appropriations.” Thus, the copyright regime, instead of creating an environment where all ‘works’ satisfying the Indian Copyright Act, 1957 (‘the Act’) are protected, transforms the system into an intellectual milieu where certain ‘efforts’ are excluded based on arbitrary and discriminatory parameters. The blog-post showcases a common link present in all the excluded works i.e. the works either are created by women or are deemed to be feminine or effeminate. Such stereotypes are sought to be removed in order to provide a fair and free platform to all authors – irrespective of either the gender, sex or the kind of work.

Through the course of this blog-post, I seek to adopt a historical approach that will explore the creation of knowledge and aim to portray the exclusion of women from mainstream cultural production and ownership in Part II. Moreover, in Part III, the patriarchal foundation of copyright law will be evaluated vis-à-vis the excluded categories. Part IV of the blog-post, highlights the suggestions which would allow the copyright regime to be more balanced and gender – neutral in its approach of protection. Holistically, I aim to highlight the incorporation of certain elements that have silenced cultural conservations. By purporting to preserve the work of men, the copyright regime has, disincentivized women authors and deterred them to participate in the exchange of ideas. In the end, the society massively suffers from this exclusion.

For ages, women’s work has been discredited, devalued, and excluded. The copyright regime instead of addressing this issue, is one of the reasons behind the creation of such a narrative. This foundation of intellectual property is based on the ignorance of a basic premise, which is the social epistemological construction of knowledge. In essence, if the very basis of copyright protection (which is the opportunity of creation of work) is gendered, then it is an obvious deduction that the entire legislative framework is biased and prejudiced. Hence, it is imperative that this model is delved into.

Sherry Ortner, states that the reason that women were considered to be subordinate to men, was that they were closer to ‘nature’ and away from ‘culture.’ The features of a woman such as their procreative function were at tension with her cultural determinism creating an ‘oppositions model.’ Hence, women were relegated to domestic private spheres whereas men dominated their position in the public life. This has an important bearing on copyright protection. The Parliament and the laws sought to preserve works that were done in the public spheres by men and were economically beneficial. Activities done by women inside their private houses, such as weaving and spinning, were excluded from the scope and the purview of the Legislature and subsequent decision makingprocesses. This model helps us to understand the nuances of the contemporary society that is tied with cultural production. The relevance of this model is that it helps us to ascertain the subordination of female cultural creation. Since, copyright law aims to protect culture and not nature, has lead to the exclusion and devaluation.

Moreover, Shalumith Firestone stated that sex dualism led to the further separation of women from participating in the masculine cultural space since knowledge could be created only through the male gaze.  Women were figures that were ‘emotional fuel’ for the men and stood at the periphery of creation of work. Additionally, the entry for production of knowledge was gendered. An exhaustive study of feminist legal theory conclusively suggests that sites of production systematically excluded women. This has led to the construction of every element of society – culture, politics, history, knowledge, science, innovation, production to be masculine in nature. Women, at every step were disincentivized to create work since firstly, their creation was not considered to be ‘work’; secondly, they were deemed incompetent to be ‘authors’ and thirdly, their creation was perceived to be so insignificant that it didn’t warrant a copyright ‘protection’

These epistemological underpinnings reveal that the very knowledge which is sought to be protected by the copyright regime is itself gendered, biased and prejudiced. The framework of copyright law, which seeks to protect these works, hence become a patriarchal tool to deter women from participating in mainstream dialogue.

It is argued that the copyright regime is inadequate and unjust as it ignores the varying experiences of diverse groups and instead, emphasizes on the promotion of a stereotype.  Different experiences lead to the creation of varied expressions that help in engaging on vibrant topics and changing narratives. Currently, the major disadvantage of having a system that disincentives the feminist theory, leads to the construction of a dominant narrative. Looking at the prevailing notions of art, literature and expression, it is a must that feminist notions and ideological narratives be injected in the public domain. Since, the male construction of knowledge is the dominant theory, it is a must that a female author must counter the mainstream views. For the feminist theory, the entire revolution, has been the process of integrating the experiences of marginalized women into the public psyche in order to concretize the subordination and exclusion that they faced. For instance, the male narrative and its protection has allowed male authors to sexualize women’s bodies and objectify it, which has been the predominant image of a woman. Thus, making it imperative that female author’s step in to counter this narrative by redefining the image.

It has been accepted that women were never empowered to dictate the significant cultural and social orders. Through a clear understanding of the feminist approach, we can merely ensure that the public domain and the complementary protection is not provided to only men, but extended to even the female gender. After this, we could leave it to the society to adopt the narrative which they deem fit. As, Adam Smith had envisaged that the society must ultimately be a reflection of a “Marketplace of Ideas”. This paradigm on the other hand, has severe practical implications and consequences. For instance – even after the acknowledgment of feminine protection to certain works, the institutions enforcing the legislation are male-dominated and thus, there exists a high possibility of discrimination. However, I believe that the above-mentioned recognition is the first step forward in reaching the objective of equality and fairness. The pinnacle of fairness would be easily attainable if similar steps are traversed towards this direction in this field.