Intellectual Property and Gender: Reflections on Accomplishments and Methodology

Kara W. Swanson, Northeastern University

Abstract

This essay answers the invitation of the organizers of the annual Intellectual Property/Gender Symposium at American University Washington College of Law, after ten years of symposia, to consider how the next ten years of scholarship in the area of intellectual property (IP) “might open up new insights regarding the production of knowledge, commodification, definition and valuation of women’s work, and other areas of feminist and queer inquiry.” I do so by thinking retrospectively, using two investigative axes, both infused by a feminist frame. The first axis is a literature review, less frequently seen as an end in itself in law than in other disciplines, perhaps to our loss. Examining the scholarship of IP and gender produced over the past ten years, I document what has been accomplished in terms of quantity and publication venues as evidence of shifting conversations and community building. Turning to the content of this work, I argue that with respect to traditional IP, that is, copyright, patent and trademark, considering gender and IP has yielded results in three areas: identifying gender disparity in participation in IP systems and its causes, identifying disparity in the application of IP doctrines to subject matter that involves gender and sexuality, and revealing the gendered nature of facially gender-neutral IP doctrines. The second axis draws upon my personal experiences writing and publishing in the area of gender and IP to consider the methodologies of this project. As an interdisciplinary scholar using history to investigate law, I am frequently forced to confront issues of translation, transcendence and transmittal that I argue are relevant to all scholars interested in what the organizers describe as “creating intellectual property law that fosters social justice.” How do we translate the insights of feminist and queer theory into IP and information law, areas where gender has remained remarkably invisible? How do we transcend subject matter boundaries to create new insights? And perhaps most challenging of all, how do we transfer those insights to scholars who do not write or think about gender, to students in classrooms, and to those who write and pass laws so that we shape IP law to promote gender equality? I use the feminist approach of finding the political in the personal to integrate these two axes and identify the key challenges and opportunities for all of us who wish to contribute to the endeavor begun by these symposia.