The strengthening of Intellectual Property is a move to strengthen the gendered society and exclude feminist contributions to innovation and cultural progress.

I. FEMINIST EPISTEMOLOGY AND THE CONSTRUCTION OF KNOWLEDGE In this section,

I seek to map the ways feminist theorists have approached cultural production and developed a feminist epistemology. Intellectual property scholarship and feminist epistemologies have proceeded upon parallel but unconnected tracks. Feminist scholars rarely, if ever, mention the words copyright, patent, or intellectual property; intellectual property scholars rarely, if ever, appeal to feminist interpretations to better understand the law.10 However, while the words copyright and patent do not appear in the feminist literature, the ideas underlying these legal regimes are evident when feminists talk about the production of culture as male dominated, about how women have been excluded from creative work or have had their work appropriated by men, and about a feminist epistemology.11 Thus, by investigating the ways feminists theorize about the construction of knowledge, new insights into how intellectual property law has been developed upon gendered assumptions may become apparent. These feminist theorists are typically not read with the idea of intellectual property in mind, but the connections between the two are clear. While feminist theorists will be familiar with these thinkers, intellectual property scholars may not be, and I have chosen to outline the feminist arguments at length to make the links between both types of scholarship clear.

Many feminist theorists discussed in this section, especially those seeking a unique women’s way of knowing, have been accused by later feminists of essentializing women by conferring on them a “unique” set of characteristics. While I am sensitive to this critique, in this section I try to navigate between essentialism and what can be politically valuable about theories focused on a women’s way of knowing. While I do not wish to reduce any individual to essentialized claims about his or her “nature,” it is possible to use this stream of feminist theory to develop an argument about another world where both men and women can participate in a different type of cultural production and ownership—a world generated from a feminist standpoint. By using these feminist theorists to make an argument about the future, instead of focusing on traits that are uniquely feminine, it becomes possible to move beyond essentialism and shed light onto the social construction of knowledge protected by intellectual property laws.

A. Early Feminist Theory and the Social Construction of Knowledge

An important early contribution to understanding how feminists might interpret intellectual property can be found in the work of Shulamith Firestone. Firestone published The Dialectic of Sex in 1970, and her work is among the most important second wave contributions to feminist theory.12 While the terms copyright, patent, and intellectual property do not appear within the context of Firestone’s argument, she spends considerable time investigating the relationship between women, culture, and the construction of knowledge.13 Firestone’s argument is premised upon a dialectical relationship between men and women that influences all aspects of our lives from personal relationships to culture and science.14 Within this dialectic, she argues that contemporary society considers the feminine inferior to the masculine.15 Sex dualism precludes women from participating in “culture,” which is masculine space.16

Culture is a masculine construction for second wave feminists.17 According to Firestone, the role women play, from a masculine perspective, is at best indirect.18 Women “contribute” to culture by acting as the “raw fuel for the culture machine” by providing emotional support or inspiration for the cultural creation of men.19 Theoretically speaking, women stand outside, or on the periphery of, masculine creation. If creative work, either scientific or artistic, is to be protected legally, it will on balance be the work of men.20

If women seek to engage in cultural production, the dualism inherent in relations between the sexes requires them to do so on masculine terms.21 Women, for the most part, cannot see themselves outside a culture already “saturated with male bias.”22 This political economy of cultural creation and innovation disparages and marginalizes women’s contributions to culture.23 The process of scientific discovery is also constructed through the male gaze.24 Given that there is no neutral starting place for an examination of cultural creation, intellectual property law itself is premised upon assumptions of creative work favoring the male creator.

Firestone’s argument opens up an interesting insight into the production of knowledge as a gendered practice. Women can choose to participate on terms constructed by men, but these terms are considered neutral. The production of knowledge is territorialized, and entrance is based upon gender. Without a gendered analysis of how knowledge is constructed, women who choose to participate in knowledge construction are often branded inferior simply because of their gender.25 Feminist historical analysis suggests that women were systematically excluded from sites of production, and, as assorted crafts became masculine territory, women were not given the opportunity to develop knowledge in those fields.26 Culture and innovation as male territory is asserted and maintained using the circular argument that women by definition cannot participate meaningfully in knowledge or cultural production.

Liberal feminists who argue for the equal participation of women often do so without questioning the underlying assumptions associated with how we construct knowledge.27 They argue that women can participate as men on male defined territory.28 However, it is necessary to dig deeper and understand the way in which knowledge itself is structured as masculine. Women need to develop a way of seeing themselves not already defined by men.29 Investigations into feminist epistemology help to uncover the power involved in the construction of knowledge by asserting that there is no “neutral” field of knowledge production and the status quo is by no means a universally applicable framework, but one of many possible avenues for knowledge construction.30

When radical second wave feminists were constructing their epistemological arguments, they were in part attempting to create grounds for the construction of knowledge for and by women.31 For many early feminists, the construction of culture as masculine was a central claim.32 Clearly, this epistemological framework has implications for how we view the idea of intellectual property. If the very construction of knowledge that is the basis for claims to copyright and patent protection is gendered, then what is protected is the outgrowth of a gendered system rendered invisible until a feminist lens sheds light on the politics of this otherwise “neutral” construction.

The construction of culture, knowledge, science, politics, and public life as masculine is premised upon the public/private distinction significant in understanding the traditional place of women in the world.33 Feminists have done considerable work clarifying the dualisms of male/female and public/private.34 If, as feminists have argued, knowledge is constructed from a male point of view, then it follows that it must be possible to articulate a feminist epistemology—an alternative to a masculine epistemology that masquerades as a universal mode of being.35 These feminist epistemologies, according to Sandra Harding, “can be used to undercut the legitimacy of the modernist epistemologies, which explicitly ignore gender while implicitly exploiting distinctively masculine meanings of knowledge-seeking.”36 A women’s way of knowing is an alternative to a status quo premised upon an exclusively masculine tradition.37 Articulating a women’s standpoint is a political activity that provides us with a different understanding of creative work and how it should be protected by law.