IP’s dualisms of ‘original’ and ‘imitative’ genders the feminine as a category to be dominated and exploited ---that renders invisible women’s labor and reinforces hierarchies.

The repeated occurrence of these dualistic themes in intellectual property law suggests a broad variety of implications incident to the structure of such dualism. The exploration and critique of mind/body dualism has a long and voluminous history in Western philosophy, and many of the insights generated by this centuries-old debate might be profitably applied to an analysis of intellectual property law. A full discussion of all, or even a few, of these insights lies far beyond the scope of this essay. Instead, I shall focus on one particular, relatively recent theme in the mind/body discussion arising out of the feminist critique of dualistic paradigms. Feminists have explored the tendency of Western philosophy and practice to divide subjects into oppositional categories including not only masculine/feminine, but also mind/body, nature/culture, public/private, active/passive, reason/emotion, subject/object.39 In each of these dichotomous pairings, the former is typically, if sometimes implicitly, regarded as superior and masculinized, and the latter considered inferior and feminized.40 Feminist commentators have suggested that such designations allow the feminized categories to be branded as “other,” as conditionally flawed or undesirable.41 The elevation of “mind” and “spirit” over “body” and “matter” have been particularly identified with social predominance of reason and objectivity, which are in turn tied to a masculinized framing of other subordinated categories of gender, race, and class.42 Thus, in his Politics, Aristotle justifies the practice of slavery by arguing that: just as the mind or spirit is superior and should rule the body; just as men as a gender are by nature rational and therefore superior, and should properly rule over women; just as humans are by nature rational and therefore superior to animals, and should rule over them, by the same logic, some classes or races who are more rational should properly rule over other races, who should properly be slaves.43 Dualism thus sets the stage for the supposedly inferior, feminized category to be given a status that allows domination and exploitation by members of the privileged category; it is a social and rhetorical strategy that “naturalizes domination.”44 Although the modern reader is likely to find nearly every step of Aristotle’s slavery syllogism to be repugnant, feminist commentators have argued that its premises of superiority are deeply embedded in the fabric of Western culture.45 While those premises may no longer explicitly justify slavery, they may continue to animate attitudes or cultural legacies of inequality. Social practices or disciplines that valorize rationality may be particularly suspect, given the longstanding conceptual linkages between reason and canons of subordination. For example, Aristotle’s complex of oppressive associations may be foundational to Western notions of science, technology, and progress.46 This critique of dualism closely relates to the important theme of “invisible work” that has also been discussed by a range of feminist commentators.47 Owing much of their analysis to Marxist critiques, this literature observes that the bifurcation of social roles into masculine and feminine, and into public and private, obscures and subordinates certain social roles, relegating certain types of work to the private sphere, and so to the realm of “feminine” labor.48 Much of this work is domestic and menial and goes largely unrecognized, even though it is essential to the day-to-day operation of families, firms, and other social institutions. Such work, often performed by women, tends to be low-pay, or in the case of household labor, entirely unpaid. Thus, a great deal of labor that supplies the basic needs of society goes unseen and unrewarded, leading feminist commentators to remark upon the systematic disparity in categories of occupation. This in turn has led them to identify and analyze the gendered nature of recognition for labor.49 The same patterns recognized in domestic and menial labor appear to hold true in our system for rewarding innovation and creativity. As described above, copyright and patent law elevate mental effort over physical effort, conceptual production over material production, thus tying ownership and economic rewards to participation in an idealized, romantic vision of creative production. Participants in the messier, corporeal, material development or execution portions of the creative process are excluded, invisible, unrecognized. This version of creative effort effectively vests ownership in a single or limited number of participants, attributing the entirety of creative production to a particular, discrete act of creative vision. But the production of creative works does not occur in splendid isolation—certainly such is not the case in modern production of copyrighted works, if indeed it ever was. Creative works are instead the result of an extended system of production. This is true not only with regard to the intangible work itself, which postmodern critiques have shown typically arises out of the creative input of many contributors and within a social matrix of previously generated cultural objects,50 but also with regard to the actual physical production of copies, which requires extended support and collaboration from a network of contributors. Such extended collaboration is perhaps most starkly obvious to us as the extensive credits of a motion picture roll by, typically after the end of the show when everyone has left the theater, briefly acknowledging the involvement of the gaffer, the best boy, the key grip, the prop and wardrobe workers, and typically the hundreds of other motion picture production participants. The contributions of such individuals are recognized for a few seconds at the end of the film, but not in the reward system of copyright law. A considerable body of case law emphasizes that the efforts of camera operators or creative consultants who arrange the action for filming do not rise to the level of authorship recognized under the copyright system.51 Neither is this situation unique to the motion picture industry. The pervasive involvement of unrecognized contributors is likely the rule in copyright rather than the exception; industries dominated by copyrighted works are rife with legions of studio musicians, editors, sound engineers, stage hands, lighting technicians, and “ghost” writers without whom there would be no creative works, but who remain quite invisible to the copyright definitions of “originality” and “authorship.”52 Similarly, new inventions are not produced in heroic isolation; postmodern critics are surely correct that the inventor is just as dependent on the milieu of creation and the incremental contributions of previous researchers as is the not-so-romantic author.53 But setting aside for the moment those general foundations of shared knowledge upon which innovation is built, much of inventive activity, and perhaps the majority of inventive research, occurs in collaborative groups. Modern research programs depend upon a host of laboratory technicians, research assistants, process engineers, machinists, drafters, interns, graduate students, and materials specialists who may well have direct, hands-on contact with the building and testing of the invention—not to mention the secretaries, janitors, bottle washers, supply clerks, librarians, and even patent attorneys who indirectly support the development of the invention. These “mere artisans” are not the “heroes” of the inventive process, and their contributions to the embodiment of the inventor’s ideas will tend to go unrecognized. They do not contribute to the idealized “conception” of the invention, and so their involvement is, so far as patent law is concerned, quite invisible. As in other areas where feminist commentators have identified attitudes and practices designating some work as socially invisible, the legal bifurcation of creativity into oppositional mental and physical efforts shunts reputation and reward to a relatively small but privileged portion of the creative process.54 By excluding from consideration creative contributions related to the physical instantiation of creative works, intellectual property law excludes particular classes of contributors from recognition and ownership. Those excluded constitute not only a class of unrecognized contributors to the creative process for purposes of copyright and patent law, but frequently are those in positions of lower status and pay, and in many cases may be predominantly female. Thus, intellectual property dualism appears to reinforce socially established structures of hierarchy within creative endeavor and to allow certain valorized contributors to dominate the creative process so as to reap the rewards bestowed under the copyright and patent statutes.