Towards a Feminist Theory of the Public Domain, or The Gendered Scope of United States’ Copyrightable and Patentable Subject Matter

Malla Pollack, American Justice School of Law

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Abstract

Feminism does not speak with a single voice. Each voice tells a different story. These stories include attacks on the gendered scope of United States copyrightable and patentable subject matter. The first wave of feminism, liberal feminism, argued that women were as rational and competent as men. It complained about the objective exclusion of women from opportunity. This feminist view might applaud the expansion of copyright and the greater ease of its availability (due to the end of formalities pursuant to the Berne Implementation Act). Liberal feminism, however, finds unacceptable copyright’s exclusion of traditional women’s work: food and clothing. Essentialist feminism celebrates the fecundity of motherhood, bodily creativity - as opposed to mere mental quasi-conception. To this strand of feminism, patent errs by giving property rights to scientist dealing with cell-lines, but no rights to the generators of these cells. Communitarian feminism recognizes the group-nature of life. It objects to the personal authorship and inventorship requirements of respectively copyright and patent. These requirements deny protection to most folklore and traditional knowledge.

The author, however, opts for humanist feminism; the view which teaches that both women and men deserve to live in more accepting societies, societies including both mothering and the best of current, male-oriented practices. Humanist feminism supports the importance of the public domain. Humanist feminism, however, is in tension with communitarianism. Communitarianism also claims the public domain, but historically has undervalued women. The authors suggests a melding of these claims through an owned-public domain. In an owned-public domain each individual has a right not to be excluded, as opposed to the traditional property right to exclude others.