Strengthened copyright protections re-entrench systems that disadvantage women

If copyright laws do not adequately value women’s creative work, it may mean that the laws themselves should be amended, expanding existing protections so that additional categories of creative works are clearly accorded copyrightability. This assumes that copyrightability will enhance creativity and the distribution of creative works in a way that is favorable to the greater good of women. Women who fail to fully commercialize their creative works may lose income. The impact of commercialization upon the control they have over their works is a bit more complicated, as commercialization usually requires an author to relinquish all control over her copyrights or ownership of the actual copyrights themselves. Women who manage to retain ownership of their copyrights, but do not aggressively police unauthorized uses of their copyrighted works, may lose both income and a measure of control over their works. All of this is true for men as well, but there may be gendered differences with respect to the number of female versus male authors who are realistically able to commercialize, control, and protect their creative works. Portions of any detectable disparities may be attributable to the nature and form of the works themselves, rather than the sex of the authors, but there also may be gendered differences in the mediums through which women and men creatively express themselves. If women are disproportionately disadvantaged by too little copyright protection for particular types of creative works, application of feminist principles would suggest that copyright laws need to be amended to create copyright parity between the genders. Expanding copyright coverage might then be envisioned as “leveling the playing field.” However, this assumes that, substantively as well as rhetorically, after the playing field is “re-graded,” women ought to be out competing equally with men in a game contrived by men that has objectives and governing rules devised by men and is refereed by men. In this respect at least, an expansionist or maximalist position on copyright scope can be characterized as contrary to some of the values of feminism. Certain copyright use and access restrictions may not mesh well with culturally significant roles and activities of women. Copyright protections constructively impose complicated formalities, such as licensing and permission procedures, that generate uncertainty and transaction costs, which can complicate creative productivity and the distribution and end uses of copyrighted works. If female authors, intermediaries, or consumers are disproportionately inhibited by copyright law strictures or have less access to competent legal advice and assistance, feminism would propose that the ways in which copyrights are applied or enforced by the courts should be altered in ways that better facilitate actualization of the goals of the copyright system with respect to women. One specific, complicated, and interesting question is whether female authors are disproportionately burdened, or benefited, by the relative absence of legal formalities that must be complied with in order to secure a valid and protectable copyright. At one time, the procedural requirements for securing and maintaining full copyright protection for a newly created work required an aspiring copyright holder to comply with somewhat complicated copyright notice, deposit, registration, and recordation of transfers and licenses provisions.41 The Copyright Act of 1976 and subsequent Berne Convention Implementation Act of 1988 significantly reduced formalities,42 vesting works created on or after January 1978 with copyright protections at the moment they are completed,43 and eliminating the notice requirement as of March 1989.44 Though U.S residents must register copyrighted works in order to bring copyright infringement suits,45 registration can be virtually coterminous with the filing of the pertinent complaint and supporting documents.46 This diminution of formalities, particularly the elimination of the notice requirement, has been vigorously criticized47 because it has effectively created a presumption that everything that is potentially copyrightable is copyright protected. The absence of copyright notice on a work no longer communicates anything meaningful on the subject of the copyright status of the work or about who holds the rights. This makes it more difficult to ascertain whether a particular work actually is copyrighted, what the scope of the copyright might be, and who needs to be contacted if licenses or permissions are to be obtained.