Their construct of the romanticized ‘author’ feeds into masculinized conceptions of the autonomous neoliberal self---that perpetuates domination and exclusion and preserves the patriarchal status quo

A large body of copyright scholarship over the past twenty-five years has sought to demonstrate the presence of a Romantic conception of authorship in the fundamental concepts, principles, and adjudication of copyright law.35 Martha Woodmansee, for example, has argued that our intellectual property laws are rooted in the “reconceptualization of the creative process which culminated in high Romantic pronouncements . . . to the effect that this process ought to be solitary, or individual, and introduce ‘a new element into the intellectual universe.’”36 What is more, she suggests, these laws are themselves “one of the most powerful vehicles of the modern authorship construct.”37 James Boyle has warned that the myth of the Romantic author causes us to value some forms of creation over others, and to underestimate the importance of external sources in the creative process.38 Mark Rose has decried “the persistence of the discourse of original genius . . . and the reifications of author and work” in copyright law.39 For Rose, what emerged out of the nineteenth century and continues to cause difficulties for copyright law todayis “the [romantic] notion of the author as a creative man who by virtue of imposing the imprint of his unique personality on his original works makes them his own.”40 The distinction between creative (‘productive’) and pseudo-creative (‘reproductive’) imagination is integral to all Romantic theorists of art;41 it is also integral to copyright law and the line that it draws between the original authorship that is to be encouraged and rewarded, and the unlawful reproduction that is to be prohibited. III. The Gendered Author A. The Solitary Self Of course, the reader may say, nothing in this description of copyright’s underlying Romantic aesthetic has any particular relevance to issues of gender or diversity: after all, men have no monopoly on originality. But when it comes to philosophizing about the nature of “mankind” and the ostensibly objective values it entails, feminists have, across decades and disciplines, sought to show how neutral language and “objective” descriptions bear the marks of gender, and so construct hierarchies with gendered significance under the guise of “false universality.” 42 The copyright field is no exception. Such feminist critiques are increasingly being brought to bear directly on the seemingly gender-neutral realm of copyright law to problematize, deconstruct, and potentially transform the way in which its core concepts, doctrines, and perceived purposes are understood and realized.43 One starting point for a feminist critique of copyright’s Romantic aesthetics is to draw the connection between conceptions of authorship and conceptions of selfhood. The authorfigure—this product of the enlightenment era and Lockean notions of self-ownership—is essentially the familiar protagonist of liberal possessive individualism. As Shelley Wright explains: The existing definition of copyright . . . presupposes that individuals live in isolation from one another, that the individual is an autonomous unit who creates artistic works and sells them, or permits their sale by others, while ignoring the individual’s relationship with others within her community, family, ethnic group, religion—the very social relations out of which and for the benefit of whom the individual’s limited monopoly rights are supposed to exist.44 This is an important claim because it opens copyright law to an enormous body of critical discourse ranging from the political to the aesthetic, and from the communitarian to the postmodern. Most apt for our purposes here is the critical assertion common to much feminist political theorizing that this fictional liberal self, with its double-edged claim to individuality and universalizability, disguises difference, disregards social “situatedness,” and so subsumes and perpetuates a history of domination, subordination, and exclusion. I have argued elsewhere that this mythic individualized author is not only profoundly ideological and historically contingent, but also derives from a strongly gendered vision of the autonomous self:45 it truly belongs to what Foucault termed the “fundamental category of ‘the-man-and-his-work.’”46 Feminist and other critical theorists challenge the notion of the subject that underpins this valorization of individuality: the atomized self who transcends society and subjectivity, labors alone, who acquires rights, owns property, calculates rationally, and transacts freely. The core objection is, of course, that “[t]he place of the free-willed subject who can transcend nature's mandates is reserved exclusively for men.”47 If the radically individualized self is the exclusive domain of men, then must not the same be said of the independent, original author at the center of copyright law? The Lockean individual who appropriates through labor by virtue of his solitary efforts, for example, is a foundational precept in Western property systems, and, I have suggested elsewhere, a persistent specter in our intellectual property discourse.48 As Carole Pateman has argued, however, for Locke, “women are excluded from the status of ‘individual’ in the natural condition.”49 The “masculinist underpinnings” of the Lockean premise of self-ownership are thus imported into copyright’s theoretical framework with every invocation of the author’s right to “reap what he has sown” and to enjoy the “fruits of his labor.”50 The well-rehearsed feminist critique of the liberal subject readily extends to the idea of the “homo economicus” or “economic man”51 who dominates copyright’s increasingly utilitarian narratives. As feminist theorists have shown, the universal subject of the neo-classical economic model—the unencumbered subject who makes rational calculations on the basis of self-interest—similarly excludes considerations of human relations, situation, and power. Once revealed, the positionality of the homo economicus (who most closely resembles the privileged white, male, heterosexual elite) suggests that “economic rationales are often merely a way to preserve the patriarchal status quo.”52 Might the same be said when copyright is justified on the basis that authors, cast in the role economically rational actors, create in response to the incentives offered by copyright protection?53