Masculine perceptions of authorship carries through to the copyright state – the exclusive right of copyright denies the right of works with collective ownership Burk 6 Visiting Professor, Cornell Law School; Oppenheimer, Wolff & Donnelly; Professor of Law (Dan L., “ARTICLE: COPYRIGHT AND FEMINISM IN DIGITAL MEDIA”, 14 Am. U.J. Gender Soc. Pol'y & L. 519, 2006, NexisUni via University of Michigan Library System, DOA: 7/15/24)//LFS – LMH

This metaphor of masculine parentage is closely tied to the notion of the heroic author. Romantic notions of authorship, like patriarchal notions of fatherhood, entail a lineal and simple causality between the effort or activity of authors and the works they develop. 106 The romantic image encompasses the sense of masculine isolation identified by relational feminists. 107 The text itself becomes the feminized "other" against which the author is differentiated. 108 Moreover, the myth of singular paternity ignores the contributions of other, often invisible contributors to the work and raises the image of the author to iconic status. 109 The author is thus envisioned as a discrete and solitary individual, separate from both the community that consumes the work and from the relational network of shared understandings and cultural images within which the work arises. 110

Gendered formulations of ownership stem from the paternity metaphor as well. Feminist commentators have noted that the "substantial similarity" test for copyright infringement echoes historical doctrines of family law in which patriarchal control over the purity of biological reproduction was premised upon familial likeness. 111 This parallel is graphically, if unwittingly, illustrated by recent directors' comments that label ClearPlay and similar viewing  [*547]  technologies as a "bastardization" of their films. 112 In this formulation, copyright closely parallels the character of paternalistic marriage, custody, and paternity laws that have been identified as intended to control female reproduction in order to ensure legitimacy of offspring and concomitantly control inheritance of land and chattels. 113 Debora Halbert thus notes that such discourses led inevitably from masculine notions of textual authorship to paternal conceptualizations of property and ownership; as much as a man's child or wife was regarded as his chattel, so were his texts. 114

This quality of masculine separation carries through to the present copyright statute, shaping doctrines such as the right of adaptation in ways inimical to collaborative or hypertextual re-formation of texts. Feminist critique of property notes that the separation between owner and owned sets the object of ownership apart, and that in turn engenders power over the thing so designated. 115 Power over a thing is effectively synonymous with property, especially private property. 116 The right to exclude others constitutes the canonical trope for defining property, meaning that canonical property by definition requires a boundary of separation from non-property. In the case of literary property, this necessitates clear separations between author and text, reader and text, and author and reader. To the extent that hypertext dissolves or blurs such boundaries, its qualities are altogether alien to the copyright regime.

This characteristic of the statute should in some sense be expected. Copyright comprises a form of control or power over users in part because the statute's stated purpose under U.S. law is to allow authors to extract payments in exchange for permission to use the protected work. 117 This justification might be challenged under feminist theory, which might offer a differing view of the Constitutional  [*548]  mandate - an ambitious undertaking rather beyond the scope of this short paper. However, even within the current justification of the copyright regime, the present formulation of the copyright doctrine contemplates a specific canon of control that privileges some types of "progress" over others. The current assumptions embedded in the statute may in fact foreclose progress in the development of innovative, non-traditional works.

There is reason to believe that the term "Progress" as used by the framers in the Constitution may have meant something quite different than common usage of the term today, either colloquially or legally. 118 Under either definition, however, Margaret Chon points out that there is no reason to privilege a particular type of informational development at the expense of others. 119 Yet the danger of suppressing alternative forms of knowledge, learning, and scholarship on the basis of the copyright law's unstated assumptions or hierarchy and linearity is real. The exclusive right of adaptation, suppressing unauthorized uses of the text, implements a bias against collaborative or non-linear uses of text that forecloses certain modes of thought and discovery that might be termed "feminist." This perspective stands in stark contrast to some recent commentary suggesting that the development of digital media requires granting authors new rights over the manner in which audiences experience copyrighted works. 120 From a feminist perspective, such a move to expand authorial domination over the reader's experience seems especially pernicious. Doing so promises to simply reinforce current patterns of thought and dominance and may serve to impede copyright's stated goal of promoting the progress of science.