Mathew 21—Law and Regulation Official (Sasha Mathew. “A feminist manifesto of resistance against intellectual property regimes: reclaiming the public domain as an open-access information commons.” Critical African Studies, vol. 13, no. 1, 2021, pp. 115-226. https://doi.org/10.1080/21681392.2021.1909881//SRS

Legal scholar Deborah Halbert argues () that the public domain is inherently ‘feminine’ because it rejects dualities: it does not privilege a single way of knowing and doing over another.

It builds bridges to alternative ways of knowing, which are not mediated by market-based exchange. Rather, the public domain is built on social bonds – gifts, rather than commodities. It is feminine in the current global gender order (i.e. hegemonic patriarchy) because it recognizes that production is an inescapably communal activity; which makes sharing with the community ‘morally appropriate’ (). Halbert’s conception of the public domain is resonant with Nancy Fraser’s ‘sphere of social reproduction’ (Arruzza, Fraser, and Bhattacharya , 8). The social reproduction sphere encompasses sites upon which the young are socialized, communities built, meaning produced and social bonds forged: in ‘households, neighbourhoods, civil society associations, and public institutions, including schools, childcare and eldercare centers’. This sphere – distinct from that of commodity production and waged labour, is what sustains and makes capitalism possible (Fraser and Jaeggi ). Both conceptions of the social reproduction sphere and the public domain reflect feminist epistemologies; they are sites of subordination – and accordingly, of radical possibility. I invoke these conceptions in proposing what is an expansively feminist, decolonial project: the reclamation of the public domain in service of the social good, rather than in service of commodity production and capital accumulation.

There have been movements within IP scholarship to strengthen and protect the public domain against encroachment and enclosure (Benkler ). Other scholars caution against a ‘romanticization’ of the public domain, which they point out has been a source for the exploitation of the ‘labour and bodies of the disempowered’ (Chander and Sunder ). They propose that there is a dialectical relationship between the public domain and IP, and that the public domain rather than act as a bulwark against propertization, feeds and enables it (Chander and Sunder ). Yet, recognizing that differing resources and circumstances shape the capacity to draw advantage from a commons, enables us to also recognize that the forces that produce these differing capabilities are political in nature (Chander and Sunder ). In calling for a revolt against IP regimes, I mean to attack the institutions that such a politics of hierarchy and exclusion has produced; and in calling for the reclamation of the public domain, I hope to furnish the soil for a different type of politics – one that has nourished the social reproduction sphere and honours feminist, indigenous, and Southern ways of knowing and doing.

We participate in neoliberal capitalism, inter alia, by complying with and honouring the claims of the intellectual property regime – an edifice built on the expropriated labour of indigenous and colonized people, slaves, Dalits and oppressed people everywhere. It is a system built on ownership and exclusion; a means for the forces of financial capital to continuously enclose and appropriate the public domain. Rejecting the constructs and imaginaries of IP law opens possibilities for other organizational forms, knowledge production systems and theories of value that could be de-linked from subordination and extraction. I do not propose a reform of the IP regime or an extension of its protection to the marginal. I do not propose greater use of licenses such as GNU General Public License (Copyleft) or share-alike licenses (Creative Commons), which attempt to expand the public domain without subverting or challenging intellectual property law as an institution. I do not propose to use the master’s tools to create sites of possibility within structures of subjugation.

A reimagination of knowledge production from a feminist and decolonial epistemological standpoint would emphasize authorship and creation as acts of reaffirming the interconnectedness of human sociality. It would reject the idea of authorship as ownership and cultural production as a discrete entity with clearly defined borders, and acknowledge the intrinsically communal nature of knowledge production and consumption. In rejecting capitalist epistemologies and theories of value which are rooted in racism and caste-based patriarchy, colonialism and labour oppression, we hope to instantiate new forms of value drawing from community and the ‘raw power of connection’ (Lorde ).