Fatou Bensouda, ICC Prosecutor

Women have climbed to the highest apex of judicial power in a number of countries. They have also climbed higher in positions of power in several countries. Both the Chief Justice and Deputy Chief Justice in Zambia as of mid-2012 were female jurists. The Chief Justice of Nigeria is a female. The Chief Justice of Canada is female and she has two other female jurists alongside her. The Chief Justice of Sri Lanka as of at the end of 2012 is female. The US Supreme Court has three female justices. In 2012, the Congress of the United States elected more women to its Senate than at any other time in the history of that institution. Rwanda’s legislature has more than 55 percent women. Women in South Africa have held significant posts in Parliament as have women in Canada. There are female presidents in Germany, Liberia, Malawi, Jamaica, Chile, Brazil and elsewhere.

Given that this is an economically globalised world, where technological knowledge is power, women are posed to increasingly influence the diffusion of knowledge.  Whoever controls the technology controls the power. One aspect of technological control, revolves around the influence “intellectual property” ownership engenders. This in turn relates to who controls the law of intellectual property.

This article discusses how men have controlled intellectual property regimes both in law and politics and whether the increasing number of women in the judiciary and politics will affect this important area of legal and political discourse. I begin the discussion with how law has been regarded historically and the intellectual challenges that view has been subjected to.

Feminism along with Marxist, Critical Legal Studies and Critical Race Theories have mounted serious challenges to the inherited western legal tradition that has claimed that law is neutral and objective even though law, from time immemorial has neither been class, gender and race neutral nor objective. There was a time when slaves, poor people, aboriginals, women and blacks could not vote; when women, aboriginals and blacks could not serve on juries or go to school; when women, aboriginals and blacks could not own property; indeed when blacks were property of others themselves; when women could not enter into contracts; when women, aboriginals and blacks could not be lawyers; when blacks could not enter a room or drink water through the door or fountain used by white people; when blacks and aboriginals were enslaved or colonized; when women and black people’s evidence in courtrooms was only accorded half the value of evidence given by a white man. Yet law managed to claim and still claims that it is neutral and objective.

The assault of Feminism, Marxism, Critical Legal Studies and Critical Race Theorists on the supposed neutrality and objectivism of the western legal system has to some great extent engendered palpable paradigm shifts and intellectual understandings of the actual designs of the law and along the way, major reforms have occurred: women and black peoples’ evidence is accorded on the surface the same weight as that of the white men; anyone can serve on the jury and can vote and go to school and slavery is prohibited; women can enter into contracts and own property. But there are still major problems experienced by women, aboriginals and the developing world in gaining full and equal recognition and status in the dispensation of intellectual property law. Feminism is perhaps the most potent intellectual current that is deconstructing this area of legal impairment.

Feminism, Marxism, Critical Legal Studies and Critical Race Theories while aimed at deconstructing the actual design of the law and the purposes served by law and in whose interests and to whose disadvantage law is generally deployed, approach the analysis of law from different situational and experiential perspectives: feminism examines the law from the point of view of the interests of women; Marxism from a class point of view; critical legal studies from power relations point of view and critical race theorists from the point of view of race dynamics. These systems however are not totally exclusive or totally dismissive of other perspectives (though Marxism comes close in dismissing other perspectives and seeks dominance). Further, within some of these perspectives are contained various strands of thought: in feminism for example, there are Marxist, socialist, radical, conservative and liberal feminisms and other strands that I have just recently encountered, for example, “difference feminism.” All these strands emphasize different aspects of concerns within the feminist framework.

While aware of the different strands within feminism, several feminist intellectual property scholars emphasize the need for a clear- cut broad dichotomy between female perspectives as a group and the male-oriented  and designed legal constructs on the other hand. Only by looking at it in this polar opposite way can the phenomena being examined be brought out in clear and sharper perspective. Women and men have broadly experienced law differentially. This includes intellectual property.  While feminism has examined many other areas of the law and exposed their chicanery- family law, criminal law (rape, prostitution, and evidence), property law, immigration law, contract law employment law, business law and others, feminism has not looked at the impact of intellectual property law until recently. But like the other areas of law, intellectual property was male designed and male oriented to the total exclusion of the interests of women. Intellectual property law as designed by men was totally inimical to the interests and nature of women, qua women. Like many areas of law, intellectual property therefore has gendered aspects. Each of the articles described below gives examples of this gendered nature of intellectual property law.

Burk in “Copyright and Feminism” states that the neglect of intellectual property in feminist analysis is surprising given its increasing prominence and potential impact on the quality of life for millions of men and women across the world. In another article, Burk, in “Feminism and Dualism” http://ssrn.com/abstract= 928421 states that intellectual property law constitutes perhaps the primary policy tool by which society influences the development and design of new technologies. Others have stated that intellectual property is the most potent form of modern imperialism. Intellectual property as it is designed expropriates the inventions and cultural artefacts of not only women but developing countries and aboriginal communities as well, to their disadvantage. So studying and deconstructing intellectual property is of the utmost importance.

Why is the feminist framework important in analysing intellectual property? Burk  answers that “a feminist approach encourages us to ask not so much where such intellectual property doctrines require us to draw the line between creativity that is rewarded and creativity that is not, as it requires us to ask why such criteria was selected in the first instance.” Why is intellectual property designed the way it is: gendered if you look at it from a feminist perspective; class oriented if it is examined from a Marxist perspective; race and culturally and national specific (or developed and developing world-divide) if you examine it from the critical race perspective--a perspective that is inclusive of aboriginal perspective and power-driven if you examine it from the critical legal studies framework?

Bartow in “Fair Use” seems to answer this question perfectly: “Many substantive bodies of law have fairly obvious gendered aspects” as already mentioned.  Not only that but “copyright laws were written by men to embody a male vision of the ways in which creativity and commence should intersect.” On top of this “men dominate congress {law making body} and the federal judiciary {Law interpreting body}.”  Men have defined key copyright concepts such as “authorship,” “protectibility,” “infringement” and related terms.  Men defined that copyrightable items must constitute saleable “property”--a masculine construct according to Burk, best suited for “industrialized commoditization” and this realm excluded arts and crafts which were consigned to the domestic realm. This realm was populated by women. Commercial exploitation is the subject of copyright.

Intellectual property has had the effect of the marginalization of women’s work and creativity. Pollack in “Towards a Feminist Theory” covers this well in her article. Intellectual property ignored to cover areas of practice engaged in by women: food and the clothing processing industry. Intellectual property rewarded the so-called individualist and solitary productions of single actors (men) exemplified by copyright grants to authors-mainly men and patent grants to sole inventors-mainly men to the exclusion of communal, collective and group endeavours engaged in by women.

Shelly Wright in “A Feminist Exploration” examines at length how “intellectual property law may be implicated in the exclusion of women and the denigration of an artistic tradition where women have contributed: the English novel and needlework.” From the beginning of copyright law regime in England, “female painters, sculptures, engravers, printers and craftsmen were largely ignored by the artistic establishment” and this tradition continues to some extent in the present times. Another clear example of gendered relationships in intellectual property that is commonly discussed is that of food and clothing processing. The exclusion of food and clothing processing from the copyright regime is gendered.

Pollack argues that since 1976, genderization of intellectual property has increased because of Congress’s enlargement of private ownership rights at the expense of the public domain, which Pollack claims to be inherently feminine (female), i.e the public domain. The reasons for characterizing the public domain as feminine are the following: it is not commodified; it recognises the communal roots of creation, rather than the atomized solitary and romanticized individual “author” or “inventor”; the public domain is concerned with “nurturing” and it provides essential nourishment by the “birthing and lactating mother.”

As these articles reveal, feminism has much to tell us about intellectual property law. It also has a lot to tell us about modern intellectual imperialism, a contributing factor to poverty in the developing world and the marginalization of aboriginal communities in the developed world. Will women judges now untangle the untangleable?

By Munyonzwe Hamalengwa.

The author  mhamalengwa@sympatico.ca practices law in Toronto, Canada and is the author of The Politics of Judicial Diversity and Transformation (2012).