The alternative is to embrace a feminist exploration of IP, in which we evaluate the dualism and power it holds.

Of the subjects Epstein recited in his jeremiad, feminist exploration of copyrights, patents, and trademarks has taken somewhat longer to emerge, but recently feminist commentators have begun to say something, indeed many things, about the law of intellectual property.7 In this essay I attempt to add somewhat to this growing body of scholarship, suggesting a new set of inquiries into the social roles played by intellectual property. In doing so, I point out certain conceptual and rhetorical structures in the law of both patents and copyrights that resemble those previously identified by feminist scholars in other contexts. These structures take the form of oppositional pairs that define much of the philosophical framework of intellectual property law. I first take up the dualism of mind and body that pervades both patent and copyright law. I then turn to the related dualism of nature and culture that is similarly found in both bodies of law. I argue that the feminist literature investigating such oppositional pairs can illuminate their function within the law of intellectual property, showing how intellectual property law contributes to determining and maintaining a pervasive set of power relationships in society.

II. MIND AND BODY

Intellectual property law awards to creators exclusive rights in certain types of creative developments that meet highly particular statutory criteria.8 By rewarding certain types of technological development and penalizing others, intellectual property law is expected to promulgate an incentive structure that beneficially shapes the path of technology.9 Intellectual property law constitutes one of the primary policy tools by which society influences the development and design of new technologies.

However, the underlying philosophical basis for intellectual property rewards has gone largely unexamined, outside of fairly rote recitation of expected utilitarian benefits. On occasion, commentators will venture an alternative basis for the existence of the intellectual property system,10 but radical critiques outside the mainstream of the European philosophical tradition have been relatively rare. Focused critical examination of pervasive biases of the intellectual property system have been even rarer, although any number of curious features in the intellectual property system point to unstated, fundamental assumptions concerning the nature of knowledge and of the universe.

For example, it seems clear that implicit in the intellectual property system is a strong element of mind/body dualism, and this informs the system’s incentives for technological development. Copyright law expresses this dualism as a highly rarified, almost mystical, view of the nature of creativity. The work that is created and owned by an author in copyright is idealized as an intangible form, which is then embodied or “fixed” in a tangible medium of expression.11 The parallel patent law doctrine of inventorship exhibits an even more striking pattern of dualism, as the patent right is defined by the “conception” of an invention in the mind of the inventor, rather than by the physical construction or “reduction to practice” of the invention.

These dualistic doctrines define those individuals or classes of individuals who will benefit from the reward system of intellectual property. In copyright law, it is ownership of the incorporeal work rather than ownership of the tangible embodiment that is privileged. In patent law, the actual building or “reduction to practice” of the invention is held largely irrelevant—it is the mental effort that counts, not the physical labor or material instantiation of the invention. Thus, a closer examination of the mind/body assumptions in intellectual property law may yield important insights into the biases or expectations latent in this reward system.

The tools developed by feminist commentators are especially appropriate to such an exercise. Not only has feminist scholarship developed a rich body of work critiquing and exploring dualism and its effects, but it also has developed a methodology for extending such critiques to previously unexplored societal practices. A feminist approach encourages us to ask not so much where such intellectual property doctrines require us to draw the line between creativity that is rewarded and creativity that is not, as it requires us to ask why such criteria were selected in the first instance. The places where lines have been drawn may tell us something about the reason for the lines, which in turn tells us something about the implicit values held by society and by ourselves.