Degendering Value

Gendered conceptions of credit and reward are written into the structures of intellectual property law.

For at least a decade, legal scholarship on gender bias in intellectual property rights has acknowledged the engagement of almost no one. Every academic paper published notes how small the field is; each researcher cites the two or three others they can; conferences feature the same key figures annually. Intellectual property rights is not a policy area to which women have paid much attention; nor have their cheerleaders, feminists.

Widespread feminine disinterest in this particular form of law is matched nearly equally by its disinterest in women. Current and historic protection under intellectual property legislation has restricted access to economic and cultural viability along gender lines. In recent decades, similar bias has been found and corrected in civil rights, family and employment law, and domestic violence legislation. IP laws sit at the crux of several debates raging right now: concerns regarding women in the literary arts, for example, and the wage gap. The paucity of strong female roles in TV and film. Gender bias in post-recession job hiring. The skimpy costumes of female characters in comic books. The global economic condition of women.

As women, we can no longer pretend that certain laws, because they do not adequately protect us, do not affect us. Under neoliberalism, poverty has grown more severe for women, as well as for trans and non-binary gender folk worldwide. IP laws don’t just quaintly reflect traditional gender roles, they reinforce them, valuing certain forms of cultural production but devaluing others. These values are then spread around the world through US media exports.

There is no body of legislation more vital to the spread of capital worldwide than intellectual property rights laws. According to the US Congress, they accounted for 19 million jobs in the US in 2012 — 30% of all American jobs, according to the Office of Management and Budget. Protecting the IP industries, then, has become ever more vital to the logic of neoliberalism. Indeed, the logic seems to multiply, allotting ownership not only of products produced and of the means of production, but of the notion of producing in the first place. Note that the Berne Convention demands US copyright law follow US cultural production wherever it is distributed. Signing Berne is a prerequisite to membership in the World Trade Organization, which boasts 159 member states and governs overseas international trade throughout most of the world. Older, more hidden, and more intrinsic to the mechanics of global trade are patent laws, covered by the 1883 Paris Convention and the more recent WTO Agreement on Trade-Related International Property Rights, which dictate, conform to, and otherwise predetermine the bulk of the world economy.

IP laws — copyright, in particular — are presently under scrutiny, and new legislation will soon be drafted. Arguably necessitated by the globalized digital age, our primary order of business in updating IP rights should be eradicating barriers — all gender barriers, as well as those of race, nationality, and physical ability — in access to opportunity. Even for those who would resist globalization. Even for those who plot its demise.

Copyrights, the most visible form of IP law, are the easiest place to start. They don’t actually protect ideas; they cover only ideas expressed in certain forms and intended for public consumption. These aspects are key and we’ll get back to them in a moment. Protected works must be made by an identifiable creator or set of creators, and indeed the length of time that protection was guaranteed was originally established around creators’ imagined lifespans. New eligible works are protected without registration, although registration is available and makes disputes easier to resolve. Finally, to the surprise of my art-school students, the Copyright Act of 1976 does not mention commerce at all. It only grants authors the right to distribute their work — meaning, the right to decide whether to do so for money or not. The copy right.

That’s the theory, at least. In practice, many aspects of the law have been weakened, diluted, or effectively trammeled into disuse by an onslaught of contradictory rulings and new legislation.

Terms of protection are the most ridiculous of these updates. An original intention of copyright was to limit the period during which an author retained exclusive control of a work, so that a healthy and active public domain would always be available, a free storehouse of ideas for artists who wanted to work more closely with influential materials. Yet whereas original term limits were 14 years total — reasonable to my mind, as an author — protection currently extends 70 years past the death of the author. That’s for mere humans: works of so-called corporate authorship — an awkward, recently established fiction that skirts the original sense under which creations would be eligible — are protected for 120 years after creation or 95 years after publication, whichever comes first.

These term-limit extensions have led to the preposterous situation where the public domain admitted no new works in 2013, and no more will be admitted until 2019. Last year, a new law even allowed certain entities the right to snatch works out of the public domain once they had been admitted to it.

Falling into disuse of late has been the fair use provision — common law before 1976, then included in the new act — intended to allow for the reuse of copyrighted materials for purposes of criticism, comment, news reporting, education, scholarship, or research. Unfortunately, fewer understand the range it covers than understand copyright itself, and it’s largely been forgotten about and is rarely upheld in the courts. This spring’s Cariou v. Prince, in which photographer Richard Prince was affirmed the right to re-shoot images as commentary, may be an early indication of the revitalization of fair use; Thomas Forsythe’s 2004 victory in a Mattel lawsuit offered another early glimmer.

In disputes over the ownership of cultural products, the courts in recent decades have most frequently come down on the side of corporate producers and owners — until the 1998 Digital Millennium Copyright Act (DMCA) incentivized gatekeepers to respond to accusations of potential copyright violation with immediate content removal, or face a lawsuit. This clear bias toward corporate producers — most able and willing to police reuse of their products — certainly privatized the silencing of speech, but it may not appear gendered. Unless you have ever been in a boardroom.

Structural economic inequity in the US is well documented — women earn 77% of what men earn on average, make up 57% of the population living in poverty, and constitute only 4% of Fortune 500 CEOs. The benefits of corporate favoritism clearly favor men, and in specific industries where copyright plays a role, the benefits of IP protection are also awarded disproportionately. The USC Annenberg School for Communication & Journalism noted earlier this year that in 2012, only 16.7% of key directing, writing, or producing positions on the top hundred box-office hits went to women. In the field of cultural production I track, comics — where copyright is not always guaranteed to a creator — things are bleaker: no more than 12% of paid content-producing work went to female artists in 2011. (That’s in the work-for-hire-heavy corporate world, too: in independent comics, women got 10% of paid gigs or less.) Hiring factors are, of course, a contributing factor to our findings that, despite making up around 46% of the industry in 2012, female artists earned on average 29% of what male artists did, while trans and non-binary artists earned less than 4%.

Such statistics barely hint at the economic reflections of gender bias in copyright law, but they do allow us to see why it matters that the law divides protectable cultural production along gendered lines. Forms eligible for copyright protection are listed in the text of the law itself: literature, music, dramatic works, pictures, graphics, sculptures, films, and architecture are all protected. The justification for these is that they are works intended for extrinsic use and dissemination. Yet historically feminine practices such as quilting, sewing, and food preparation are not protected.

Defenders of the law argue that these forms of cultural production are process-based — processes not being eligible for copyright protection. (Processes can be eligible for patent protection, although most are not.) These forms are often created through group participation — in violation of the identifiable creator or group-of-creators tenet. Perhaps most telling, they are also arguably intended for intrinsic, domestic use. So it is not, IP defenders might say, that the drafters of the law were sexist, it is just that traditionally feminine work was often collaborative, usually process-based, and less frequently intended for public view — falling, nearly accidentally, outside the scope of the necessarily strict definition of copyrightable material.

Yet whether it is the law that is sexist or merely the people who wrote it no longer matters. The world has changed since 1976 in three significant ways. One, collaborative work is clearly protectable now when corporate. Two, more and more folks are working in cultural production against traditional gender type, severing the slippage between femininity and domesticity. And three, technology has blurred the distinction between the public and private spheres. This has drawbacks, certainly. But inarguably, a quilt is now just as likely to go on public display as a sculpture, if the former is owned by a kid who does a viral-ready video series out of a bedroom covering pop songs in a frog mask and the sculptor, well, lives in a small town and sucks. Or consider fashion, which is almost by definition the creative mode through which we display ourselves publicly. The current framework simply doesn’t hold.

The gender bias in the delineation of protectable works, however, is also reflected in the cultural acceptance of media created for feminine consumption. IP lawyer Ann Bartow notes how frequently chick lit, chick flicks, girl groups, and boy bands are called “derivative,” “repetitive,” and “unoriginal” — each a small prod at copyright eligibility. Glance through news stories about illegal music downloaders or freedom-of-speech defenders and see men represented as pirates, saviors, artists, geniuses, or activists, while female media “consumers” are portrayed as innocent or witless victims, if present at all.

In truth, studies show that women illegally download music just as frequently as men, if not more frequently, a finding that questions the traditionally feminine role of “consumer” in this context entirely. Contrast this with the most famous feminine figures from the great copyfights of the last few decades: Roy Orbison’s (or 2 Live Crew’s) “Pretty Woman,” or Dan DeCarlo’s character Josie (of “and the Pussycats” fame). Even in the Forsythe case, victory guaranteed the artist’s right to use Barbies with impunity.

While feminine production is devalued, consumable images of women are overvalued, in an eerily consistent outcome of IP policy. The Copyright Act of 1976 betrays, like its predecessors, a perceptible bias for traditionally masculine modes of production, fostering an environment where masculine producers are reinscribed in the cultural imaginary, and feminine figures presented as commodity when presented at all. This legal distinction has had the effect of making more of the work that more men do more eligible for protection — valued — under US law. Yet these laws define and foster further conditions for cultural production, and therefore culture, giving shape and form and color to the material we use to create our very values system.

IP law seeps. Present biases do not remain exclusively inscribed in our national legal code and value system, because copyright bucks state borders by design. Experts in the field — no data is officially tallied, a fact that should itself cause alarm — place the US media and entertainment industries as among the top two American exporters. Take into account content illegally downloaded or pirated around the world, figures that couldn’t be tracked even if we did have data on US media and entertainment exports, and the US is certainly the largest producer of media content in the world.

In other words, what is valued under US law doesn’t, you know, stay in Vegas. Sheldon Pressor, the Senior Vice President of Warner Brothers, in testimony to support the Central American Free Trade Agreement to the House Ways and Means Committee in 2005, testified that “the entertainment industries are one of the US economy’s greatest assets.” Calling it “the copyright industry,” and praising its ability to create a “surplus balance” with other nations, he went on to claim it accounted for over 6% of the nation’s GDP.

It may not seem much, but even at 6%, Pressor’s field today pulls in nearly nine times that of the entire region with which he was advocating a trade agreement. Such “surplus balances” are currently being maintained by Pressor’s company Warner Brothers through the export of films like The Hangover III and Man of Steel; television productions like Two and a Half Men and The Carrie Diaries; and DC Comics, whose 2011 reboot of fifty-two titles — despite a stated desire to better highlight character and creator diversity — hired only 8% female creators, featured nearly four times as many nude or underdressed gal as guy characters, and could claim only ten titles that passed the Bechdel test (six on technicalities).

In terms of economic and cultural impact, copyrights have little on patents. The latter are intended to protect products of a scientific nature, elements of processes, or technological solutions — covering “science and the useful arts,” as the US Constitution explains, in clear contrast to useless arts like literature and architecture, and in complete neglect of cooking and sewing. Unlike copyrights, patents are only guaranteed on successful application, and are protected for a significantly shorter period of time — twenty years from date of application, in most cases.

Patents are expensive and costly. The application process can take a few years, and requires a lawyer or two — more, if you’re sued for infringement. They offer an explicitly commercial form of protection, guaranteeing only “the right to exclude others from making, using, offering for sale, or selling” an invention in the US, or importing an invention into the US. Yet a patent does not guarantee a patent-holder’s right to produce or to profit from an invention, and monitoring patent misuse is the patent-holder’s responsibility — a further implied financial investment, mostly of legal fees.

There are three types of patents: utility patents, which apply to processes, machines, products, material, or a significant improvement to previous versions of any of these; design patents, which cover the ornamentation or decoration of a manufactured good; and plant patents, granted for distinct varieties of asexually produced vegetation.

The addition of living things to the realm of patenting is recent and hotly debated, not least because House Committee Reports accompanying the Patent Act of 1952 state overtly that the law protects “anything under the sun that is made by man.” Granted, all laws until recently used masculine pronouns, presumed masculine actors, and protected masculine activities in the presumed-to-be-masculine public sphere. Many have since been updated. Yet the distinction carries a whiff of sex-specificity beyond the standard of the day, for plenty of things exist under the sun that were “made by” woman — including man. And life forms — vegetable or animal — were not at the time eligible for patent protection. (In mid-June the Supreme Court revisited this precedent, ruling against Myriad Genetics that human genes could not be patented, legal protection the company had been using to charge stiff fees for breast cancer screenings, which dropped to a third of the original the day after the ruling was announced.)

Even after laws were recast in gender-neutral language, patents continued to vex advocates for equality. The National Bureau of Economic Research found last year that patent holders are only 7.5% female. Commercial patents are held by an even smaller percentage of women, 5.5%.

In recent decades, these numbers have shifted slightly. Annette Kahler notes in “Examining Exclusion in Woman-Inventor Patenting” in a 2011 Journal of Gender, Social Policy, and the Law that a massive push before the turn of the century convinced more women to enter the fields of science, technology, engineering, and math, where the majority of patenting takes place. Women subsequently increased their degree earnings twenty- or thirty-fold or more. This corresponded to a change in patent holdings, although not at similar rates: 1.4% of all patents issued in the US in the 1990s named at least one female inventor. By 2002, this number had grown to 10.4%. Yet women’s participation across all patent-earning fields then dropped by approximately 2 percentage points between 2000 and 2008, and an accompanying decline in patents awarded to women during this time can be assumed.

It is not all bad news. The National Women’s Business Council found the US Patent and Trademark Office (USPTO) in 2010 had record-high numbers of successful female applicants. But it is not really good news, either: “The ratio of successful women patent applicants to successful men patent applicants varies from a low 73.36% in 1986 to a high of 93.57% in 2002,” the report states. It does not go on to explain what that means: that in the best of years, only 6.43% more women than men are denied patents.

This would seem to be our smoking gun, proving that the matter doesn’t rest on women failing to apply themselves. This oft-heard charge is known as the ambition gap, and it’s the same one to which Bryce Covert refers in the Atlantic — citing studies from Catalyst and the National Bureau of Economic Research — when she writes: “It’s not there. Women do ask for more. They just aren’t rewarded for it.” The unvarnished truth is that male inventors are granted patents more often than female inventors.

There remain questions about how best to address this inequity, partially due to the USPTO itself — whose staff is three-quarters male — which neither requests nor tracks applicant gender. These data can only be found by assessing applicant names, a process fraught with presumptions.

The specific causes of discrimination are also complicated, and elucidated only slightly by the case of Marlo Brown, who identified certain health issues in cats at a shelter she ran and asked a local lab for help. The lab isolated a virus and patented a diagnosis technique, on which she was not listed. She sued. The 1994 ruling (Regents of the University of California v. Synbiotics Corp.) concluded that “Brown was not present and did not participate in any way in the events of the ‘simultaneous conception and reduction to practice’ of the FIV virus,” but merely “brought her sick cats, along with her written observations of the cats’ symptoms, to UC Davis with a suspicion that the cats may have a virus similar to the human AIDS virus.” Her suspicions — and her suggestion of the FIV virus — were the exact ones scientists later confirmed. That this translates into “did not participate in any way” in the process of identifying a virus is confusing, but legally sound. It points to the specific actions prized under patent law, and the narrow, and gendered, set of behaviors it values.

Legal scholar Dan Burke’s “Do Patents Have Gender?” in the Journal of Gender, Social Policy, and the Law finds a similar narrow standard in a description of 1966’s In re Winslow. In this precedent-setting case, Judge Giles Rich composed a rubric for determining patentability that is still in place today. Under scrutiny was how to determine obviousness, a quality that precludes patentability. The judge envisioned a scenario in which the applicant, Winslow, was “surrounded by the prior art references that entail pertinent aspects or features of the claimed invention.” This “Winslow tableau” casts an imagined world in which all inventors would be placed; it describes a creator as holed up in a room in which visual evidence of all previous knowledge on a subject is laid bare for him, pencil behind his ear and hair disheveled, as he ponders a creation — perhaps casting a half-eaten sandwich aside when he tires of it so the maid can come and dispose of it later.

Fellow legal scholar Allison Tait, writing on the IP blog Written Description, remarks that this scene establishes “a sense of a scientific community — one that happens to be historically masculine. The inventor is not alone in his shop; rather the ghosts of inventors-past surround him, male colleagues on whose shoulders he stands as he heroically summons invention.”

Any imagined scenario on which legislative rulings rest must, by nature, be restrictive. Yet while any human body could conceivably be switched out with Winslow’s, the scenario remains perniciously gendered. This isn’t the way women in the cultural imaginary work; it’s not likely that men in the real world work that way, either. Many claim to, sure: it is the stuff of which both the nutty professor and the myth of genius are concocted. But the imagined objectivity and omniscience that the Winslow tableau presumes is not known to exist in the world of the human — nor, for that matter, in the messy, material world of scientific experimentation.

In patent law, in other words, a masculine epistemology is presumed, described, and ultimately rewarded. Feminist legal analyst Leslie Bender has posed similar concerns about the “reasonably prudent person,” a legal fiction around whom American tort law establishes the rights of people not to offer assistance to others in distress. Similar to the Winslow tableau’s depiction of the inventor, this imagined scenario reflects the rights of individuals over their responsibilities to an interconnected community. It smacks of the same dehumanizing objectivity we sense in the case of Marlo Brown.

Yet our concerns thus far have only applied to the patent application process, one that seems to revel in a synthetic reflection of masculine epistemologies. The process also materializes those epistemologies — objectifies, in a literal way — rewarding those that exhibit novelty, utility, and non-obviousness. Patent applicability also reflects a bias along gender lines, then, not unlike that seen in copyright law. Imagine, for a moment, a system of laws that protected the material results of arguably more feminine epistemologies, and you will begin to perceive it. Community resourcefulness, material reuse, ecological safety, or social equality, for example. For example: a stipulation that demanded an inventor name the maid on a patent for contributing to the conditions that allow for solitary work.

Such alternative frameworks, Burke points out, may not enter debates over patent law reform in the near future. They are, however, helpful in the apprehension of the profound impact patent law has over notions of invention, science, progress, and trade, as well as the policies that have — through almost no deliberately oppressive actions whatsoever — limited the field of participants to a marked degree.

Now, set this against recent hubbub over “patent trolls” emanating from the Obama Administration. The White House claims that patent holders who secure rights to unused innovations, then extract licensing fees or sue others for infringement — non-practicing entities, patent assertion entities, or patent trolls — have tripled infringement litigation in the last two years, running up annual costs to the tens of billions of dollars. (Accounting for indirect damages places cost estimates even higher.) Yet the same report acknowledges that it’s hard to discern the trolls from the useful non-practicing entities, who sit on patents not to extract charges from users for no reason, but to extract them in the course of legitimate business practices like offering licensing fees.

Some aren’t buying the difference. “Trolls are just a symptom of the patent system’s problems,” writes Timothy Lee in the Washington Post. He characterizes these problems not as gendered, exactly, but as part of the same pro-corporate drive we’ve seen in copyright policy and rulings, which we know to be gendered. In the 1980s and 1990s, Lee writes, far too many questionable patents were granted, with consequences “made worse by rules that give patent holders too much bargaining power against accused infringers.”

Forget for a moment the economic argument — for even the tens of billions of dollars lost every year is out of the reach of most women inventors and, as we saw, will primarily benefit the boys in the boardroom — and let’s look instead at the impact on the basic notion of a functioning democracy.

The Electronic Frontier Foundation launched a campaign last year called Defend Innovation that aims to invigorate debate around patent reform (although for our purposes, the scope is quite narrow). By June 12, 2013, this campaign had collected 15,553 signatures. A back-of-the-envelope count got me an average of 3–5 women’s names per page (gender-neutral and clearly fake names split evenly into M and F camps, for the hell of it), getting us a very loose estimate of about 1250 women’s names — or only about 8% female participation in this particular debate over the future of patent law. It’s about the same percentage of women among all patent-holders in the US, so regardless of accuracy, it’s useful to wonder what, beyond the non-existent ambition gap, might be keeping women from participating, even in discussions about IP law reform.

Or did we cover that already?

My history working around and against them will indicate that I do not support too much increased vigilance regarding intellectual property rights protections. Alongside many of my more pirate-y pals, I would prefer a world where there is less need for protection of valuable assets, wider access to culturally produced goods, and indeed, fewer laws. Legislation is always confusing and often boring, even when it refers to exciting things. But the slackening of such controls now over an incredibly entrenched and deeply biased system would do nothing to shift the underlying values that decades of discriminatory legislation have fostered. An across-the-board loosening of IP protection at this stage would, I believe, lead to the increased piracy of those cultural productions already less protected, worsening the economic gender gap beyond its current unacceptable state.

I have come to believe that, in addition to the other, more standard amendments to IP laws forwarded by many in the activist, artistic, and IP community — destruction of corporate authorship, implementation of reasonable term limits, reinforcement of fair use, the cessation of protection for unused inventions, revitalization of the public domain, and abandonment of the stupid DMCA — we must also call for a general recasting of what is and isn’t protected as intellectual property. These considerations should not be subject to intended use, such as for public or private appreciation, and should reconsider the form of protected work — not only to eradicate gender bias but to adapt to the digital age and allow for the now-inevitable global spread of both resulting works and the laws themselves.

I’m not concerned about the effects IP law has on women or on men in particular. I am, however, aghast that a body of legislation polices along gender lines at all, however historically they may have become embedded in our way of thinking about the world. That this same body of legislation is possibly the most influential in the global economy deepens my resolve to reconsider it, spreading as it does the need to assess and attribute merit along out-of-date sensibilities as regards biology, ability, and appropriateness.

Over my last year of research, I have come to believe two things: one, that we cannot wait for capitalism to self-destruct before we implement strategies to improve people’s lives right now, and two, that capitalism will not, and cannot, exist in an environment of gender parity. This last will not be achieved until all cultural producers, across the range of media they choose to work in, have equal access to the valuation currently inscribed in intellectual property rights laws.

There may, I concede, be more radical solutions to IP reform that will implement gender parity but restrict corporate influence, and I am eager to hear them. But until they also correct for generations of cultural misogyny — forging, perhaps, a path to also correct for the ableisms, nationalisms, and racisms equally embedded in our legal code — they should be dismissed as tainted by a values system fostered under biased IP laws.