By Anshul Dalmia
Introduction: Exploring the ‘Other’ Side
Intellectual Property Rights have been praised and appreciated for their sincere efforts towards the protection of knowledge and original thought.[1] However, for the law to preserve these rights, it is imperative to probe the construction of knowledge which is sought to be protected.[2] This article attempts to view the regime of intellectual property right through a feminist lens and aim to evaluate the patriarchal underpinnings and gendered assumptions. The creation of knowledge and involvement in the cultural production of goods, has been quite dominated by men. Thus, the law which was created (by men themselves) aimed to shield the status quo, with no considerations of feminist epistemology.[3]
This approach warrants us to navigate questions as – Why do ‘only certain’ creations of literature or art deserve protection? Why are traditional categories excluded from the purview of copyright? The answer to these questions lie in an interdisciplinary analysis of the copyright regime, which transcends from a socio-cultural paradigm.[4] The objective of this study is to provoke a multi-stakeholder dialogue in order to prevent the marginalization of work created by women.
The objective of copyright law, is to encourage participation and incentivise authors to create work. However, there exists a need to make the work accessible in the public domain and thus, the law tends to favour certain ‘creative and original’ creations of work, while deeming the rest to be “unlawful appropriations.”[5] Thus, the copyright regime, instead of creating an environment where all ‘works’ satisfying the Indian Copyright Act, 1957 (‘the Act’) are protected, transforms the system into an intellectual milieu where certain ‘efforts’ are excluded based on arbitrary and discriminatory parameters.[6] The blog-post showcases a common link present in all the excluded works i.e. the works either are created by women or are deemed to be feminine or effeminate.[7] Such stereotypes are sought to be removed in order to provide a fair and free platform to all authors – irrespective of either the gender, sex or the kind of work.
Through the course of this blog-post, I seek to adopt a historical approach that will explore the creation of knowledge and aim to portray the exclusion of women from mainstream cultural production and ownership in Part II. Moreover, in Part III, the patriarchal foundation of copyright law will be evaluated vis-à-vis the excluded categories. Part IV of the blog-post, highlights the suggestions which would allow the copyright regime to be more balanced and gender – neutral in its approach of protection. Holistically, I aim to highlight the incorporation of certain elements that have silenced cultural conservations. By purporting to preserve the work of men, the copyright regime has, disincentivized women authors and deterred them to participate in the exchange of ideas. In the end, the society massively suffers from this exclusion.
Navigating the Feminist Epistemological Construction of Knowledge
For ages, women’s work has been discredited, devalued, and excluded.[8] The copyright regime instead of addressing this issue, is one of the reasons behind the creation of such a narrative. This foundation of intellectual property has been based on the ignorance of a basic premise, which is the social epistemological construction of knowledge.[9] In essence, if the very basis of copyright protection (which is the opportunity of creation of work) is gendered, then it is an obvious deduction that the entire legislative framework is biased and prejudiced.[10] Hence, it is imperative that this model is delved into.
A. Understanding the Battle of the Sexes: Nature v. Culture
Sherry Ortner, states that the reason that women were considered to be subordinate to men, was that they were closer to ‘nature’ and away from ‘culture.’[11] The features of a woman such as their procreative function were at tension with her cultural determinism creating an ‘oppositions model.’[12] Hence, women were relegated to domestic private spheres whereas men dominated their position in the public life.[13] This has an important bearing on copyright protection. The Parliament and the laws sought to preserve works that were done in the public spheres by men and were economically beneficial.[14] Activities done by women inside their private houses, such as weaving and spinning, were excluded from the scope and the purview of the Legislature and subsequent decision making processes.[15] This model helps us to understand the nuances of the contemporary society that is tied with cultural production.[16] The relevance of this model is that it helps us to ascertain the subordination of female cultural creation.[17] Since, copyright law aims to protect culture and not nature, has lead to their exclusion and devaluation.
Moreover, Shalumith Firestone stated that sex dualism led to the further separation of women from participating in the masculine cultural space[18] since knowledge could be created only through the male gaze.[19] Women were figures that were ‘emotional fuel’ for the men[20] and stood at the periphery of creation of work.[21] Additionally, the entry for production of knowledge was gendered.[22] An exhaustive study of feminist legal theory conclusively suggests that sites of production systematically excluded women.[23] This has led to the construction of every element of society – culture, politics, history, knowledge, science, innovation, production to be masculine in nature.[24] Women, at every step were disincentivized to create work since firstly, their creation was not considered to be ‘work’; secondly, they were deemed incompetent to be ‘authors’ and thirdly, their creation was perceived to be so insignificant that it didn’t warrant a copyright ‘protection’.
These epistemological underpinnings reveal that the very knowledge which is sought to be protected by the copyright regime is itself gendered, biased and prejudiced. The framework of copyright law, which seeks to protect these works, hence become a patriarchal tool to deter women from participating in mainstream dialogue.
B. Countering the Dominant Narrative
It is argued that the copyright regime is inadequate and unjust as it ignores the varying experiences of diverse groups and instead, emphasizes on the promotion of a stereotype.[25] Different experiences lead to the creation of varied expressions that help in engaging on vibrant topics and changing narratives.[26] Currently, the major disadvantage of having a system that disincentives the feminist theory, leads to the construction of a dominant narrative.[27] Looking at the prevailing notions of art, literature and expression, it is a must that feminist notions and ideological narratives be injected in the public domain. Since, the male construction of knowledge is the dominant theory, it is a must that a female author must counter the mainstream views. For the feminist theory, the entire revolution, has been the process of integrating the experiences of marginalized women into the public psyche in order to concretize the subordination and exclusion that they faced.[28] For instance, the male narrative and its protection has allowed male authors to sexualize women’s bodies and objectify it, which has been the predominant image of a woman.[29] Thus, making it imperative that female author’s step in to counter this narrative by redefining the image.[30]
It has been accepted that women were never empowered to dictate the significant cultural and social orders. Through a clear understanding of the feminist approach, we can merely ensure that the public domain and the complementary protection is not provided to only men, but extended to even the female gender. After this, we could leave it to the society to adopt the narrative which they deem fit. As, Adam Smith had envisaged that the society must ultimately be a reflection of a “Marketplace of Ideas”.[31] This paradigm on the other hand, has severe practical implications and consequences. For instance – even after the acknowledgment of feminine protection to certain works, the institutions enforcing the legislation are male-dominated and thus, there exists a high possibility of discrimination. However, I believe that the above-mentioned recognition is the first step forward in reaching the objective of equality and fairness. The pinnacle of fairness would be easily attainable if similar steps are traversed towards this direction in this field.
Hence, a feminist evaluation of copyright law helps us understand that the law works to preserve the system of creation that are based on patriarchal undertones. The legislative framework does not provide any space for engagement with alternate narratives. When women seek to critique the male-centric work, they face threats of copyright infringement. Ultimately, the society is fed a narrative, protected by law, stifling any attempts towards a critical dialogue.
Examining the Patriarchal Character of Copyright Law
The first legislation that propounded the inculcation of copyright law, which was the Statute of Anne, has also been argued to be gendered.[32] The legislation protected industries that were male dominated in favour of ‘learned men.’[33] Several copyright regimes, including India is based on such a biased law, and hence has adopted such a prejudiced approach. The patriarchal behaviour of copyright law can be well understood by the differential treatment vis-à-vis protections meted out to ‘arts’ and not ‘crafts’.[34] The work of art, done mostly be men is differentially treated than craft, mostly done by women.[35] This partisan approach helps us to streamline the abstract ideas into a concrete example of how copyright law favours men and disincentives women.
Originally, art and craft were accorded the same position, but after the Renaissance period, there seemed to develop an ‘intellectual separation’ between the two.[36] It was seen that art transformed into a superior activity than craft and artists were respected more than craftsmen/women.[37] The division between the activities roughly translated to the ‘difference between the sexes’ as men soon began associating themselves with superior activities such as art, culture, politics and education whereas women were associated with menial work such as preparation of food, clothing, vocational training and domestic crafts.[38] Keeping these anthropological developments in mind, it is imperative to refer to the copyright law in order to draw a semblance between the two.
Section 2(c) of the Act defines the term ‘artistic work’ which is granted a protection under the law, and includes the ‘work of artistic craftsmanship’ under Sub-section (iii) amongst others.[39] It is contended that the particular provision showcases the gendered face of copyright law. Firstly, the provision prima facie indicates protection for ‘craftsman’ and not ‘craftswoman’.[40] While some might argue, that this was a play of semantics and ‘craftsman’ was just the preferred pronoun that even encompassed ‘craftswoman’, I argue that there is an underlying biased notion at-play here. There is a difference even between feminine craft such as – embroidery, decorative work and masculine crafts like – stonework and ironwork.[41] Hence, it is argued that the intention of the legislature while mentioning ‘work of artistic craftsmanship’ was the need to protect only masculine crafts and exclude feminine crafts.
Secondly, the major imbroglio with the legislation is the presence of a ‘qualification’ which is that the work by the craftsman must be ‘artistic’ in nature.[42] Such a qualification is unique as compared to the other constituents of artistic work which are granted protection irrespective of their artistic nature or quality. In essence, in order to provide a copyright protection to crafts, they must have an aesthetic qualitative element absent for any other work that warrants preservation.[43] The Act does not mention the contours of the term ‘artistic quality’ and hence, the meaning can undergo a subjective interpretation and the jurisprudence surrounding this imperative qualification can be dominated by the ‘male gaze’.
Thirdly, there must be a requirement of intent that the author while making the craft had an artistic intent – a want to cultivate something that espouses a high aesthetic value.[44] The requirement of such an intent lacks in most other examples of artistic work such as – a painting, sculpture or drawing. The Canadian Federal Court, in the case of DRG v. Datafile, held that irrespective of not having a requirement of an artistic character for other artistic works, the work of a craftsmanship warranted an aesthetic value, one which would be decided by the Court.[45] Here, the Court places itself into the ‘shoes of an artist’, who would determine if the work needs a copyright protection based on an arbitrary and whimsical test of artistic-ness along with a gendered prejudice of the meaning of an ‘author’.[46] Such a difficult test for originality acts as a major barrier for craftswoman to get a copyright protection on their work.
It is imperative to note that the judgements of the Canadian Supreme Court are being used to substantiate Indian law since the Indian courts have not faced any such problems yet. Moreover, the Canadian Law mirrors the provision of the Indian law vis-à-vis the definition of artistic work and might be construed to be an appropriate yardstick for interpretation. Thus, the ensuing trajectory of cases have been used to accentuate and supplement the argument adopted by the author with respect to the understanding of the definition of ‘works of artistic craftsmanship’.
Fourthly, this aesthetic requirement of intent, have been raised to an extremely high pedestal by the Courts that even reinforce gender stereotypes and biased assumptions while evaluating whether a work would be that done by an artistic craftsman. Such a prejudiced notion is apparent in a judgment rendered by the Canadian Supreme Court, where the Court assumed that a creation of a clothing dress by a woman would ‘never’ be done in pursuance of an aesthetic value but would ‘always’ be an article of commerce.[47] The judge, moreover, held that a woman could never conceptualize herself to be author of the work of an artistic craftsmanship since she could never “gratify the aesthetic emotions by perfection of execution whether in creation or representation.”[48] In simpler terms, the Court held two things – first, that a woman could never be the author of an artistic work of craftsmanship since she would always lack an aesthetic touch to her work and would never have the intent of creating a work in pursuance of such an objective; second, that the work by women would always be a mere product of commerce and could never achieve an artistic character which would be adequate enough to provide it a copyright protection in the ‘eyes of the Court, the judge or the law’.
Fifthly, in order to shatter this glass ceiling it is imperative to re-conceptualise the jurisprudential meaning and understanding of the term ‘author’.[49] While the Indian Copyright Act defines an artist to be author of an artistic work,[50] without any gendered assumption, the courts through a trajectory of judicial interpretation as well as the academia through a catena of scholarly work have transformed the meaning of an author to a person who does work in ‘lieu of a commercial objective’.[51] Female dominated industries – such as weaving, quilling and spinning have been romanticized in order to mean that women work for a non – profit and a non- commercial objective.[52] This has led the Courts to believe that women who might even be creators of a work would not be ‘authors’ since the activity of creation is done in pursuance of a hobby or mere enjoyment and not to earn a commercial gain out of the production of the work.[53] Such a perspective, attaches gendered notions and stereotypes to the law, making it a ‘race to the bottom’.
Through the above example of the differential treatment meted out to arts and crafts, I aim to cast aspersions and doubt the neutrality of the copyright law. Moreover, I attempt to critique and highlight the shortcomings of the Legislature who enacts the law and the Judiciary, who interprets the law. The adoption of a feminist lens, aids us to examine these underlying notions of bias, prejudice and partiality which cannot be figured out prima facie and warrants further intricate evaluation.
Conclusion
Incorporating a feminist lens and approach while viewing the neutral appearing copyright law, helps us to discern major imbroglios surrounding women oppression and marginalization. Through the course of this blog-post, the author has attempted to adopt a jurisprudential and interdisciplinary approach while seeking to evaluate the patriarchal undertones and assumptions to the copyright law of India. In order to showcase the prejudiced character of the intellectual property law, I critique the social construction of knowledge vis-à-vis the discriminatory access which was provided to women. Since, the copyright law aims to protect the prevailing knowledge, it is portrayed that the law has convenient devalued, discredited and excluded the work of women. This has led to a further and subsequent elimination of women from all public and knowledge spheres as this leads to substantial dis-incentivization. The female gender would not be promoted and encourage to write or create any work, if they know that their work will not be preserved or granted copyright protection. Women as compared to men, have been oppressed since the advent of time and this incentive structure is the panacea to the malady of subsequent marginalization. This paradigm would ensure that women have a ‘voice which is recognized’ and a life which is ‘legitimate and open to social mobility’ The blog-post attempts to highlight this hiatus in the existing legislative framework.
In order to juxtapose these findings, the works of artistic craftsmanship is used as an example in order to showcase the biased approach of the law and patriarchal character of the statute. The need of having an artistic qualification and aesthetic value increases the standard of originality, making it difficult for women, who are mainly creators of craft to claim a copyright protection for their work. This is coupled with the problematic attitude and gendered notion of work, authorship and originality present in the narratives propounded by the Court.
Here, the author acknowledges that while efforts can be taken by the civil society, in order to ensure that women are provided access to public spheres and are provided an equal opportunity to participate in the cultural production of knowledge. There still remains a long way to go with respect to the statutory protection which must fulfil its beneficial nature and attempt to bridge the gap between incentivization and accessibility. The work be it of any kind must be protected irrespective of the gender/sex of its creator or author. The effort and perseverance undertaken by an author with respect to their work, is non binary or gendered, and must be preserved at any cost.
Hence, the author through this part, attempts to highlight this ‘hidden face of copyright’ and concludes with the optimism that the Legislature and the Judiciary would take sincere efforts in remedying this wrong. The Copyright Law which is now seen as a tool of oppression should be transformed and converted into a vehicle that drives social change and revolution through the society. The legislation in the end, should not be exclusionary but be encompassing of every work, every author, every region, every caste and every gender. The effort of the author must be lauded and appreciated, and aimed to be protected.
The author, Anshul Dalmia, is currently a law student at the National University of Juridical Sciences (NUJS), Kolkata.
[1] Malla Pollack, Towards a Feminist Theory of the Public Domain or Rejecting the Gendered Scope of US Copyrightable and Patentable Subject Matter, 12(3) William and Mary Journal of Race, Gender and Social Justice, 603 – 604 (2006).
[2] Debora Halbert, Feminist Interpretations of Intellectual Property, 14(3) Journal of Gender, Social Policy & the Law, 434 (2006).
[3] Emily Chaloner, A Story of Her Own: A Feminist Critique of Copyright Law, 6(2) A Journal of Law and Policy, 239 (2010).
[4] Dan L Burk, Feminism and Dualism in Intellectual Property, 15 Journal of Gender, Social Policy & the Law, 183 (2006)
[5] B Cortney Dogagoo, Feminist Anthropology and Copyright: Gauging the Application and Limitations of the Oppositions Model, available at https://irwinlaw.com/wp-content/uploads/2020/05/Content-Commons-Intellectual-Property-in-the-21st-Century-08-doagoo.pdf
[6] Carys J Craig, Reconstructing the Author Self: Some Feminist Lessons for Copyright Law, 15(2) Journal of Gender, Social Policy & the Law, 233 (2007).
[7] Simone Murray, Deeds and Words: The Women’s Press in Politics and Prints, 11 Women: A Cultural Revolution, 197 (2000).
[8] Sally Hagaman, Feminist inquiry into Art History, Art Criticism, and Aesthetics: An Overview for Art Education, 32(1) Studies in Art Education, 27 (1990); Gill Perry, The Parisian Avant – Garde and Feminine Art in the Twentieth Century, 199 (1999); Supra, see note 5 at Page 193.
[9] Supra, see note 2 at Page 438.
[10] Id.
[11] Sherry Ortner, Is Female to Male as Nature is to Culture, Women, Culture And Society, 67 (1974).
[12] Id.
[13] Michelle Rosaldo, The Use and Abuse of Anthropology: Reflections on Feminism and Cross – Cultural Understanding, 400 (1980).
[14] Shelly Wright, A Feminist Exploration of the Legal Protection of Art, 7 CJWL, 70 (1994).
[15] Rebecca Tushnet, My Fair Ladies: Sex, Gender and Fair Use in Copyright, 15(2) 15(2) Journal of Gender, Social Policy & the Law, 304 (2007).
[16] Supra, see note 5 at Page 193.
[17] Rozsika Parker, The Subversive Stitch: Embroidery and The Making of the Feminine, 5 (2010).
[18] Shulamith Firestone, The Dialectic of Sex: The Case for Feminist Revolution, 176 (1970).
[19] Sandra Harding, The Science Question in Feminism, 136 (1986).
[20] Supra, see note 16.
[21] Id.
[22] Id.
[23] Carloyn Merchant, The Death of Nature: Women, Ecology and Scientific Revolution, 152 (1980).
[24] Jean Bithke Elshtain, Public Man, Private Woman: Women in Social and Political Thought, 4 – 6 (1993).
[25] Raadhika Gupta, Copyright v. Copyleft: A Feminist Perspective on Marginalization under Copyright Laws, 4 NUJS Law Review, 70 (2011).
[26] Id.
[27] Supra, see note 6; Supra, see note 4.
[28] Supra, see note 4 at Page 240.
[29] Sonia Katyal, Performance, Property and the Slashing of Gender In Fan Fiction, 14 Journal of Gender, Social Policy & the Law, 461 (2006).
[30] Daniel Farber & Suzzana Sherry, Telling Stories out of School: An Essay on Legal Narratives, 45 Stanford Law Review, 805 – 807 (1993).
[31] Abrams v. United States, 250 US 616.
[32] Robert Gorman & Jane Ginsburg, Copyright, 1 (7th ed., 2006).
[33] Id.
[34] Mark Banks, Craft Labor and Creative Industries, 16(3) International Journal of Cultural Policy, 3015 – 312 (2010); Sally M, The Distinction between Art and Craft, 28(1) Journal of Aesthetic Education, 55 (1994).
[35] Anthea Callen, Sexual Division of Labor in the Arts and Crafts Department, 5(2) Woman’s Art Journal, 3(1984).
[36] Edward Lucie Smith, The Story of Craft: The Craftsman’s Role in Society, 11 (1981).
[37] Id.
[38] Rozsika Parker & Griselda Pollock, Old Mistresses: Woman, Art and Ideology, 17 (1981).
[39] Section 2(c)(iii), The Copyright Act, 1957.
[40] Supra, see note 5 at Page 199.
[41] Cheryl Buckley, Made in Patriarchy: Towards a Feminist Analysis of Women and Design, 3(2) Design Issues, 5 (1986).
[42] Section 2(c)(iii), The Copyright Act, 1957.
[43] George Hensher v. Restawhile Upholestry Limited, [1967] AC 64; Supra, see note 5 at Page 200
[44] Id.
[45] DRG Inc v. Datafile, [1988] 2 FC 243.
[46] Id.
[47] Burke and Margot Burke Limited v. Spicers Dress Design, [1936] Ch 400.
[48] Id.
[49] Supra, see note 2 at Page 446.
[50] Section 2(d), The Copyright Act, 1957.
[51] Deborah Lindsay Williams, Not in Sisterhood: The Politics of Female Authorship, 3-4 (2001).
[52] Mark Rose, Authors and Owners: The Invention of Copyright, 38 (1993).
[53] Supra, see note 5.
The Journal of Indian Law and Society 