This article was originally published in the 4th Print Issue of bluestockings magazine.
Feminist epistemology seeks to provide ways of creating new possibilities and new realities — it does not seek to present a simple defined answer, but instead to pose more, perhaps better, questions. Mobilizing feminist epistemologies alongside intellectual property laws permits serious investigation of current conceptions of the United States’ legal system, and, more specifically, concepts of ownership and property rights. A feminist theoretical framework deeply challenges intellectual property regulations and laws by interrogating established concepts of what constitutes an idea and its origin. It opens the space to ask: What is knowledge? And how can we regulate it?
The American legal tradition, especially in intellectual property, privileges the inventor, the individual. What is excluded from this system is the recognition of communally constructed knowledge. Currently there is no recourse within the American legal framework to protect by law such communally produced knowledge. If invention is inspired by a community experience such as a dinner party, or by collectively determined solutions to a catastrophe or trauma, how can we explain that a single person can hold a monopoly on the manifestation of that idea?
By using feminist epistemological tools and perspectives to discuss the challenges and rewards of applying a feminist critique of intellectual property, I propose four new possible fields of vision:
1) An elimination of intellectual property laws altogether,
2) A set of intellectual property laws that will eliminate royalties and specific protections to individuals, but not the law itself,
3) An ideological shift in the law that would allow communal and affective knowledges to be afforded equal protections,
4) A quota system that would ensure that all people are equally represented as owners of intellectual property in the world.
It goes without saying that the outright eradication of intellectual property laws would cause drastic changes. Its subsequent disassociation with the current economic system in the United States, a capitalistic system that relies on individual property, would be greatly altered. For example, pharmaceutical companies, which hold many patents in the United States, would no longer hold exclusive rights to those products and would inevitably cause many brand-name drug prices to plummet. This would perhaps enforce the appropriate compensation of indigenous communities upon which much pharmaceutical knowledge is based.
Feminists should be interested in considering such an eradication because it completely and directly deconstructs the notion that products of the mind can and should be regulated, protected, bought, disputed, and commodified. By privileging no one’s intellectual property, we can effec- tively privilege all “intellectual properties.” Creative artists, who work outside of the realm of dominant power frameworks (read as: straight white male), can rarely obtain rights to their works because the current legal system does not provide a means for them to do so. Only recently has the labor of choreography been deemed copyrightable in the United States. In contrast, circuit boards, software, and pharmaceutical drugs are not only copyrightable and patentable but have historically been protected to the fullest extent to the law. Unfortunately, many people have consistently been excluded from the processes and protections of intellectual property at every stage: from creating and registering, to commodifying works and collecting royalties on them. Dissolving intellectual property laws and protections would be one way to privilege all forms of creative knowledges.
The second vision seeks to eliminate royalties to intellectual property holders. Eliminating royalties and specific protections to individuals challenges the logics behind intellectual property laws, redefining the structuring logic for participation in a system that privileges a white, masculine construction of global economics: capitalism and exploitation. Intellectual property laws attempt to stimulate a robust capitalistic free-market by providing a competitive marketplace. They incentivize creativity, not as an ends in itself, but instead as a means to make profit by giving creators rights to the products of their creativity. Intellectual property laws also ensure, and seek to expand, public access to creative products in a competitive marketplace.
Through intellectual property laws, Americans participate in the process through which they gain acceptance to the system of neoliberal capitalism. Eliminating both royalties and the individual as patent or copyright holder opens the possibility for new cultural attitudes to emerge. For example, current intellectual property laws do not have the ability to effectively deal with sites of knowledge production. Wikipedia may have “solved” their intellectual property problem with Creative Commons licensing, but what structures are in place for everyone else to protect collective knowledges and experiences? Can marginalized groups successfully protect their works within our current legal system? It is hard to say.
The third idea that I suggest is to work within the existing framework of the law and re-write these laws to include provisions for group-based work. Provisions in the current law allowing groups to have joint-authorship do exist, but these provisions are not the form of protection that a feminist epistemological framework seeks. Patricia Hill Collins, an inspiration behind feminist standpoint epistemology, proposes that actual lived experience is an important site of knowledge production. To expand on her initial formulation, one could imagine a world in which feelings, traumas, biographies, oral histories, and social events are perceived as valid sites of knowledge production. Collins’ transformative work on feminist epistemological thought challenges the construction of intellectual property laws by questioning the underlying authority and origin of ownership: who has the rights to ownership? Where does ownership come from? Does it have to be written? Published? In a society that was built on patriarchal values and privileges patriarchal constructions of the law, feminist epistemologies like Collins’ seek to dismantle the ways through which knowledge (and intellectual property) is produced and regulated.
Cultural intellectual property, a topic that has been widely written about in feminist communities, exemplifies our current legal system’s inability to privilege group or communal knowledges. Cultural capital produced by a culture or an ethnic group, such as fables or parables, traditional crafts, canning, and moonshine recipes are all examples of what a feminist epistemology investigates. It asks how these cultural productions and interpretations of knowl- edge (therefore intellectual property) have been appropriated. How were they created? Do cultures want to have rights to commu- nally produced work(s)? How can we know?
The rainbow flag, for example, has represented the LGBTQ community since the 1978 assassination of San Francisco’s first openly gay supervisor, Harvey Milk. Originally designed by Gilbert Baker in 1978, the flag has gained substantial status as the trademark, so to speak, of the LGBTQ community and it was used to commemorate Milk in the 1979 Pride Parade. The International Congress of Flag Makers now recognizes the flag. Although the community has not trademarked this image, could they? Even among those who may share similar histories and may identify with a group, such as the LGTBQ community, there will always be individuals who may not feel as closely aligned with a community or movement, which will ostensibly conflict with the goals of communally produced intellectual properties.
The fourth, and last, vision for a feminist future in intellectual property is to establish quotas for all people to be equally represented in patent, copyright, and trademark registration. While this idea is impractical and defies the theoretical underpinnings of Constitutional law in the United States, it could point to a long-term solution. This vision would allow for everyone to be recognized as productive and contributing members of the creative economy.
There is no time like the present to begin thinking of new ways to protect or produce intellectual rights legislation. While women have made significant advances in the sciences and in creative arts, they are still underrepresented as registrants of patents and copyrighted works. Pursuing more female registrants of intellectual property does not necessitate a feminist vision of intellectual property law, but it is an important starting point. When women become the center of intellectual property (and not just a simple majority of registrants), the traditional male power structures established by our Founding Fathers are challenged. The nomination of Michelle K. Lee to Deputy Director of the United States Patent and Trademark Office, the office that regulates and manages all patent and trademark registrations in the United States, is a step in the right direction, but is representation in leadership the only way to fulfill this feminist fantasy?
A feminist framework can provide new avenues to reimagine intellectual property law. By drawing from the intersectional vision of the feminist movement, one can begin to conceive of many diverse inter- pretations of intellectual property. I have provided a limited number of solutions, but I want to also point out that there is no one ‘right’ feminist way. Hopefully, intellectual property law in the United States will adapt to address these issues related to the complex process of naming, regulating, and judging what constitutes knowledge in the 21st century
By Tatum Lindsay, Contributor
Edited by Marina Golan-Vilella and Shierly Mondiati