The University of Ottawa's Shirley E. Greenberg Chair for Women and the Legal Profession was created to further the careers of women in the law and to research and advocate for legal reforms that would increase equality for women. At first glance, this might seem a bit off-topic for a blog about Intellectual Property law.
As a member of both IPOsgoode and the Institute for Feminist Legal Studies, Professor Carys Craig is well placed to explain why it is not. She recently presented "A Feminist Copyright Agenda: Open Access, Attribution, and the Academy" as part of the Greenberg Speakers Series. Her presentation was based on her paper with Joseph Turcotte and Rosemary Coombe in the open access journal feminists@law, "What's Feminist About Open Access?"
Feminist Legal Theory, she noted, involves looking at laws and legal systems and understanding how and why they reinforce patriarchal power structures. Those problems stretch beyond obvious areas like Criminal and Family law and into all the reaches of the law. IP law is no exception. If this is the information age, information might be the most important source of power. Copyright is how we protect that power.
Prof. Craig went on to talk about the relative invisibility of copyright in our daily lives. We interact with copyright-protected material constantly in our work, in our research and study, in our downtime when we're binge-watching Netflix. But we rarely think about the laws and licensing details that dictate what information we can have, when we can have it, and how much we are going to pay for it.
The key question she raised was, under current copyright law, whose speech are we encouraging and whose speech are we devaluing?
She looked at the question through the lens of academic publishing, calling out the problems with the current closed-journal model in which men are more likely to get their work published and to have that work cited and thus have more work published; in which access to research results is restricted to those who are affiliated with institutions who can afford the steep price tag of journal subscriptions; in which treating the written word as individual property ignores the reality that academic work is not produced in isolation but builds on shared ideas and shared relationships.
She advocated for an open access model of publishing, not as a final solution to the problem of copyright and the reinforcement of traditional power structures, but as a step in the right direction. Using tools like Copyleft and Creative Commons licences, feminists can turn the legal force of property ownership against itself in a kind of copyright karate. The same right to control your own work that is normally used to lock up research can be used to set it free.
This is a distinctly feminist approach, she argued, because the emphasis on sharing and attribution in open licences reflects the feminist relationship-centered view of creativity and knowledge sharing. It de-privileges the market-driven perspective and can reduce exclusion and gatekeeping.
Prof. Craig did not ignore the reality that open access publishing may also be used to reinforce existing power structures. She repeated some of the criticisms of the movement: that sharing women's work freely may simply be devaluing it; that the costs associated with open access publishing mean it is still only available to those with institutional support; that the increasing emphasis on collecting data about views and citations might reinforce existing power structures.
While she acknowledged that these problems are real, Prof. Craig contends that they can be overcome if feminist scholars develop deliberate, thoughtful practices around citation and amplification of women's voices. They must continually question whose voices they are hearing and sharing and strive to diversity those relationships. They must reconsider who and what is considered authoritative. By applying these feminist principles in their interactions with academia, feminist scholars can reshape academic strictures into structures that support and engage their female peers.
It may not be an easy fight, but it certainly seems like a fight worth fighting.
Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.