Copyright protection excludes traditionally female crafts and collective forms of production this upholds the idea of the “single innovator” that could not exist without the labor of woman

Copyright and patent regimes evolved from and continue to rely upon patriarchal notions of the individual ‘creative genius’ and the ‘inventor paradigm’ – both whom were envisioned as male. Historically, copyright protection was only addressed to the ‘high arts’ of sculpture, painting, literature and music – fields dominated by men, excluding (until recently) female ‘crafts’ such as needlework, knitting and quilting (Wright Citation1994).

Feminist critics point out that it is women’s labour and their attendance to social reproduction functions which allow men to immerse themselves in the production of knowledge and art, and that individual works of (male) authorship are therefore impossible (Halbert Citation2006). Even today, white male authors are significantly over-represented in copyright registrations in the US (Brauneis and Olia Citation2018). Similarly, feminist scholars have critiqued the ‘inventor paradigm’ of patent law (Gearhart-Serna Citation2009). Women have long been excluded from the inventor role by lack of access to the resources that would allow them to claim patents, and by misogynistic public cultures that devalue women as original, novel authors and inventors. More directly, the inventor paradigm encodes values and epistemologies which are inherently male and Western, and devalues non-conforming knowledge systems (Gearhart-Serna Citation2009). Consider ‘traditional knowledge’, a community based resource, held by and passed down within communities. Traditional knowledge has been associated with indigenous subjecthood and gendered feminine – it is seen as ‘instinctive and pre-modern’ in contrast to the scientific, rational, developed ways of knowing, epistemically associated with masculinity (Gearhart-Serna Citation2009).

In addition, the requirement for a discernible author or set of authors arises from eighteenth century Eurocentric conceptions of the creative process (Burk Citation2007). The political economy of cultural production excludes or marginalizes women, forcing them to participate as males – or relegating them to the status of inspirers or emotional supporters for men’s cultural creation (Halbert Citation2006).

Collective forms of production such as folklore and oral traditions are not regarded as eligible for protection until appropriated and fixed in a tangible medium amenable to market exchange (Halbert Citation2006). The Lockean fiction of the individual creative genius at the centre of knowledge production, thus begins to fall apart when questioned; it successfully obscures the relational nature of the creative process as a web deeply interwoven with the work of other social actors and built upon existing hierarchies and asymmetries.

Commoditization

Both types of IP regimes – copyright and patent – use legal devices to transform knowledge into something amenable to commodification. Copyright law specifies a fixation standard: it protects the expression of ideas fixed in mediums from which they can be perceived, reproduced, or otherwise communicated. Patent law demands non-obviousness, an inventive step from the prior art. The historical processes which configured IP law, have inextricable roots in processes of colonialism. Indigenous knowledge and practices did not receive the status of science and were not deemed worthy of protection. Instead, they have been deemed obvious or not valuable, placed within the realm of ‘public domain’ and coded as available for taking. The Western scientist takes a ‘non-novel’ and ‘obvious’ piece of traditional knowledge and converts it into something capable of industrial application: something useful, finished and patentable. As ecofeminist Vandana Shiva notes:

Under the colonial influence, the biological and intellectual heritage of non-Western societies was devalued. The priorities of scientific development and R&D efforts, guided by a Western bias, transformed the plurality of knowledge systems into a hierarchy of knowledge systems.

(Shiva Citation2000)

Hegemonic ideas about knowledge, code knowledge produced by marginalized groups as ‘unscientific, superstitions and ‘old wives’ tales’’ (itself a sexist rhetorical manoeuvre) (Barwa and Rai Citation2003). Such knowledge attains the status of property when transformed by scientific methodologies into commodity form: fixed into a tangible medium or embedded into a scientific process capable of disclosing an inventive step (Barwa and Rai Citation2003). However, this process of transformation often distorts and diminishes the integrity, authenticity and spirituality of collective heritage systems, which resist containment in these alien legal vessels (Paterson and Karjala Citation2003). Other types of indigenous knowledge are so embedded within their natural landscapes, that attempting to remove it could damage the relationships of communities with land and impact their capacity for self-determination (Barsh Citation1999).

Intellectual property regimes claim to benefit individual artists and producers by giving them control over the disposition of their own labour. In reality, however, this rhetoric of individual empowerment obscures the ways in which IP operates to dispossess and harm groups. Consider for instance, the history of Black cultural production in America, which has been one of innovation and creativity, as Greene (Citation2008) notes, but its commodity process has been one of ‘appropriation, degradation and devaluation’. From appropriating slave songs, to ‘black-face minstrelsy’, to the work of Black blues artists pilfered from the public domain, IP law facilitated plunder. Greene argues that the structures of copyright law enabled this plunder: the ‘idea-expression dichotomy’ in copyright law relegated the ground-breaking work of Black composers to the ideas domain and thus ineligible for expression-based protection; the fixation standard disadvantaged improvisation, which is integral to African-American modes of production; and the onerous registration formalities of copyright, put it out of reach of semi-literate Black composers, whose lack of fluency with legalistic bureaucracies was itself a means and an end of American racism.

IP regimes operate by excluding access and commandeering surpluses – both features of capitalist institutions and production systems, a point that is forcefully illustrated by the cultural appropriation of Black American art, which enabled white artists to realize large financial gains by playing Black creators’ music to largely white audiences (Greene, Citation2008). And yet, Black artists have continued to innovate and create even without economic incentives or with asymmetric access to the market-based fruits of their labour (Greene, Citation2008). This calls into question a key assumption of and justification for copyright law: that economic incentives built around individual ownership are indispensable to creation and innovation.

Incentives and innovation

IP defenders often make the claim that economic incentive is the key to creativity and innovation and that market mechanisms drive the ‘innovation engine’ (Johnson Citation2010, 247). However, neither history nor psychology bear this claim out. Pre-modern China, considered one of the most innovative civilizations in history, did not permit any ‘monopolistic rights of exploitation’ over an invention or work (Darch Citation2017, 44). Similarly, indigenous peoples have produced and stewarded vast vaults of artistic and scientific knowledge for centuries. As Vandana Shiva writes, IP offers distorted ideas of creativity, by denying the role of innovation in traditional systems – such as for instance, the role that farmers play in developing high-yielding, soil fertility-enhancing varieties of crops through traditional practices (Shiva Citation1999, 29).

There is little empirical evidence of the claim that expanded IP regimes result in increased innovation. On the contrary, in the information domain in particular, patents tend to benefit rent-seekers while harming innovation and access to knowledge, owing to increasingly ‘combinatorial’ and ‘incremental’ patents forming ‘patent thickets’, which block the path to innovation (Aigrain Citation2010, 162). Copyright benefits – increasingly corporatized – are largely allocated amongst a complex web of publishers, distributors, producers, marketers, and advertisers, rather than artists or composers (Greene Citation2008). Callahan (Citation2017a), musician and activist, likens the music industry to a plantation system, where recording artists are equivalent to sharecroppers and recording companies; the owners of channels of distribution and marketing, are the landlords who extract underpaid labour from artists in exchange for access to distribution (16). He points out that the American music industry was built on ‘slavery, Jim Crow and the perpetuation of racism’ (Callahan Citation2017a, 19).