Ready for Real Change? Copyright, Education and the Quest for Equality , by Carys Craig

April 26th is World Intellectual Property Day, the 2018 theme for which is ‘Powering Change: Women in Innovation and Creativity.’ While, truth be told, the day itself typically strikes me as an awkward effort by the World Intellectual Property Organization [WIPO] to celebrate the protection of intellectual property [IP] for its own sake, this year’s theme has provided a welcome opportunity to reflect on the relationship between gender (in)equality and IP—a relationship that is egregiously under-examined, and largely obscured by the seemingly neutral face of IP laws.

WIPO’s website describes World IP Day as “a unique opportunity each year to join with others around the globe to consider how IP contributes to the flourishing of music and the arts and to driving the technological innovation that helps shape our world.” Undoubtedly, then, this year’s World IP Day is intended to highlight women’s flourishing creativity and innovation as encouraged—it is to be presumed—by the IP system. This is potentially a worthwhile enterprise, particularly when one considers the extent to which women’s creative contributions have gone unacknowledged, misattributed, and undervalued throughout history. The denial of IP protection to traditionally female creative practices, the radical underrepresentation of women inventors on patent registers around the world, the readiness to regard woman’s work as the raw material for others’ creativity—these all point to the exclusion of women writers, artists, and innovators from the benefits of IP. But surely this ought not to surprise us. As Anne Bartow powerfully puts it, “[c]opyright laws were written by men to embody a male vision of the ways in which creativity and commerce should intersect.”      

What is more surprising, then, is the extent to which copyright and other IP laws have, for so long, been able to remain relatively insulated from feminist critique. Feminism is fundamentally concerned with challenging sources of social inequality, power disparities, privilege and subordination. IP laws grant rights to exclude and regulate behaviour in relation to what many consider to be today’s most valuable resource: information itself, whether residing in technological innovations (the subject of patent law), trade-source signifiers (the subject of trademark law), or original authored expression (the subject of copyright law). When copyright law grants proprietary control over works of expression, it allocates private rights over literary, dramatic, musical, and artistic works, covering everything from scholarly articles to computer code, and from blockbuster movies to compilations of data—sources of enormous social and economic power in our information society. These rights create legal barriers, impose licensing and transaction costs, and generate chilling effects for all kinds of downstream uses of protected works, raising the costs of both future creativity and learning. Inevitably, then, copyright is a matter of social justice and equality. Or, more pointedly, it is a source of exclusion and inequality.

Education is, of course, essential to the advancement of equality. And access to educational resources is essential to the delivery of education. Educational institutions, educators, and students are forced to operate within the confines of what copyright law permits, and so carry out their professional responsibilities and daily activities under its constant shadow. Copyright law may originally have been conceived of as a tool “for the encouragement of learning;” but its expansive protections for owners, and its unduly circumscribed limits and exceptions for users, have allowed it to become, all too often, an obstacle in the path of education. Copyright rules may reward certain authors and protect particular economic investments to some degree, no doubt, but such benefits are not evenly shared—and nor are the costs evenly borne. Whether we’re concerned about the availability of affordable course packs in India, user rights to engage in fair dealing in universities in Canada, the viability of institutional repositories and open access journals in Europe, or the accessibility of (often publicly-funded) scientific research online, it should be clear that rigid copyright rules have the power to impede instruction and to limit learning. Instruction and learning are vital pathways to capacity-building, self-expression and self-actualization, and ultimately to the disruption of society’s ingrained knowledge hierarchies.       

And so the more interesting opportunity offered by this year’s World IP Day is to think, not just about the women’s creativity that flourishes under our existing IP regime, but about the creative practices, knowledge-sharing, empowerment of marginalized voices, and education of students around the world that the rigorous over-protection of IP actually obstructs. That should lead us to consider, more fruitfully, the ways in which ever-expanding copyright protections, traditional publishing practices, and established institutional policies could be reimagined—in, yes, innovative and creative ways—to truly advance the goals of gender and racial equality, access to knowledge, economic wellbeing, social inclusion, and enhanced cultural participation around the globe. That sounds to me like a World IP Day worth celebrating. 


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Carys J. Craig

Dr. Carys J. Craig is an Associate Professor at Osgoode Hall Law School, York University, in Toronto, Canada, and Academic Director of Osgoode’s Professional LL.M. in Intellectual Property Law. She is the author of many scholarly articles and books in the area of intellectual property law and policy, with a focus on the public interest, including ‘Copyright, Communication & Culture: Towards a Relational Theory of Copyright Law’ (Edward Elgar Press, 2011).  

 

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