Women have now 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. The Chief Justice in Zambia is female and there are other female jurists on the court. The Vice-President is female. As in Ghana, the Chief Justice of Nigeria is a female. The Chief Justice of Canada is female and she has three other female jurists alongside her. The Chief Justice of Sri Lanka as of at the end of 2012 was 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, Jamaica, Chile, Brazil and elsewhere. Malawi and Liberia were once led by female presidents. Zambia has a female Vice-president, a heart-beat away from the presidency. The US may be led by a female president come January 2017. Britain once had the ‘Iron Lady,’ Margaret Thatcher, as Prime Minister, as had Canada in the early 1990s. Prime Minister Justin Trudeau has appointed a fifty-fifty share of female and male ministers.

Given that this is an economically globalised world where technological knowledge is power, women are poised 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. Given their increasing numbers in power including in the judiciary, will women in Africa as a case study, control intellectual property regimes?

To answer this question, it requires me to discuss how intellectual property regimes have been controlled hitherto. It is no secret that men have controlled intellectual property regimes both in law and politics. It is now a question of whether the increasing number of women in the judiciary and politics will affect this important area of legal and political discourse. 

Women and men have broadly experienced law differently. This includes intellectual property.  While feminism has examined many other areas of the law and exposed their chicanery-family law, criminal law (rape, prostitution, 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 law 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 law 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” 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 law? 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 domestic realm was populated by women and it was less valued. It had no monetary value. Commercial exploitation is the subject of copyright and it was dominated by men, by design.

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 and Women in political positions of power in Africa, now untangle the untangleable?  Did the conference in Senegal on Intellectual Property in Africa early this month deal with the Woman issue in Intellectual Property in Africa?

By Dr. Munyonzwe Hamalengwa

Dr. Munyonzwe Hamalengwa is the author of Class Struggles in Zambia and the Fall of Kenneth Kaunda as well as Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General. His latest book is The Politics of Judicial Diversity.