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Gender and Copyright

By Senior Copyright Counsel, Google Inc.

A powerful metaphor employed to argue that authors should have extensive control over the works they create is the metaphor evoking the relationship between an author and the author?s works as that of a parent-child, called the creation-as-birth metaphor. The metaphor is used in many areas besides copyright. Here are some examples:

Our nation was born out of a desire for freedom
Her experiment spawned a host of new theories
Your actions will only breed violence
He hatched a clever scheme

And most on point:

Her writings are products of her fertile imagination

The creation-as-birth metaphor posits an intimate connection between what an author creates and his or her work. It would therefore be a violation of the author?s very person to use his to her work without permission. Feminist legal writers have explored the personhood metaphor as it is used in copyright. Professors Ann Bartow and Rebecca Tushnet have done excellent work in the areas, as have others, see e.g., Symposium on Feminism and Dualism in Intellectual Property, 15 American University Journal Gender Social Policy & Law (2007); Malla Pollack, Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States Copyrightable and Patentable Subject Matter, 2 William & Mary Journal of Women & The Law 603 (2006). See also Christine Battersby, Gender and Genius: Toward a Feminist Aesthetic (1989), and Richard Swartz, ?Patrimony and the Figuration of Authorship in the Eighteenth-Century Literary Property Debates,? 7 Works and Days 2 (1989) for a discussion of the gendering of authors as males.

In asserting the birthing metaphor as a justification for a strong copyright regime, proponents of the metaphor hearken back to pre-copyright days, since for any metaphor to work in a new context, it has to be based on pre-existing associations. The birthing metaphor is quite ancient. In his ?Symposium,? Plato had Diotima describe poems created by Homer and Hesiod as their intellectual children, even greater than actual children.

Daniel Defoe spoke of his book as the ?Brat of His Brain. For Defoe, the brain was regarded as the womb of thought, See Walter Pagel, ?Medieval and Renaissance Contributions to Knowledge of the Brain and Its Functions,? reprinted in The History and Philosophy of the Brain and its Function 95 (Poynter ed. 1958), thereby metaphorically overcoming the obvious biological objection to Defoe metaphorically birthing anything, but raising other issues, which Mark Rose has explored in his fascinating article, Mothers and Authors: Johnson v. Calvert and the New Children of Our Imagination, 22 Critical Inquiry 613, 622 (1996).

Is there a gender difference in how we react to copyright proposals? The recently introduced and highly controversial Canadian copyright reform bill, C-61, provides a surprising look at this, thanks to a survey done by AngusReid Strategies (see here). The survey shows significant regional, age, and educational differences:

Canadians are clearly divided on the proposed changes, with 45 per cent of respondents supporting the amendments, and another 45 per cent rejecting them. One-in-ten (10%) are undecided.

Regionally, British Columbia (52%) and Alberta (48%) show the most resistance to amending the Copyright Act , while Quebec (53%) and the Atlantic Provinces (50%) are the most encouraging of tougher copyright infringement laws. In turn, Manitoba and Saskatchewan (21%) house the most respondents who are unsure on the issue.

The large disparity among respondents in each of the different age and education groups is particularly interesting. The survey reveals that a majority of Canadians over the age of 55 and those with a high school diploma or less are clearly in favour of the amendments to the Copyright Act. Sixty-one per cent of older Canadians support the new changes, while only 23 per cent of those aged 18 to 34 and 47 per cent of those aged 35 to 54 feel the same way.

Canadians with a high school diploma or less are also very supportive of the stricter laws?55 per cent say they support the anticipated changes, compared to 40 per cent of those with a college or technical school diploma and 40 per cent of those with at least one university degree.

Michael Geist points out another result in his blog: ?Men oppose the legislation 49 to 33 percent, while women are split 31 - 29 in favour with the largest number (40 percent)

Full post as published by The Patry Copyright Blog on June 20, 2008 (boomark / email).