This post is part of a series of evidence summaries for the 21 for 2021 project, a CREATe project within the AHRC Creative Industries Policy and Evidence Centre (PEC). The 21 for 2021 project offers a synthesis of empirical evidence catalogued on the Copyright Evidence Portal, answering 21 topical copyright questions for the 21st century. In this post, Dr. Carys Craig (professor of intellectual property law at Osgoode Hall Law School) explores the need for more empirical evidence relating to gender and the copyright system.
What are the connections between copyright and gender? As someone who writes and researches on the topic of feminist approaches to intellectual property (IP), it is obvious to me that the connections remain largely opaque to many, with the mere suggestion of a gendered dimension to IP often garnering responses that range from bemusement to denial to disdain. Kara Swanson has described how simply raising the IP/gender problem can invoke anger and requires “careful persuasion” (Swanson (2016), 185) To that end, a significant body of feminist, queer, and critical race scholarship has emerged over the past fifteen years or so that explores and illuminates connections between IP and gender: analyzing gender disparities in the use of IP protection (e.g., Pollack (2006), Greene (2008), Katyal (2014), Rosenblatt & Tushnet (2015)); exploring the differential application of IP doctrines to gendered or sexualized subject matters (e.g., Tushnet (2007), Swanson (2011), Kraut (2015)); and revealing the gendered nature of legal doctrines themselves (e.g., Burk (2007), Craig (2014), Gilden (2015)) (to borrow Swanson’s categories). Perhaps more persuasive for some than conceptually mapping or illuminating these connections, however, will be evidencing them.
To be clear, the point of empirical inquiry into copyright and gender should not be to prove the obvious: the copyright system was designed by men for men (Bartow (2006), 557); it is inevitably “imbued with the assumptions of those who wrote and interpret it” (Swanson (2016), 185); and its benefits are likely to flow disproportionately to those with the power to exploit it. Rather, the point should be to demonstrate the continuing implications of these gendered dimensions, and to shift the conversation towards more productive questions: how to develop and apply copyright law in ways that advance equality and inclusivity, serve social justice goals, and foster participation (not necessarily participation in the copyright system for its own sake, of course, but in the creative practices that copyright is supposed to encourage).
Debates and recent evolutions
Facially, copyright law makes no distinctions based on gender, sex, or sexuality; but it has long been recognized by all but the most ardent formalists that neutral laws can produce substantively unequal outcomes, reinforcing power disparities and social hierarchies, albeit beneath the veil of legal objectivity. One would hope this is no longer a matter of debate. What is a subject for debate, however, is whether and how gender plays a role in our copyright system. More pointedly, the debate might be whether and how copyright law functions to replicate gender hierarchies, to exclude, marginalize, or disproportionately burden women (or, by the same token, to disproportionately benefit or advantage men).
Methodologically, this involves what feminist researchers call “asking the woman question” (Wishik (1985), 72-75; Bartlett (1990), 837). Employing a feminist intersectional approach and alert to the risks of gender essentialism, it also means asking whether and how copyright serves to reinforce social and cultural hierarchies defined along multiple, intersecting axes of inequality including sexual orientation, race, nationality, indigeneity, disability, and class. If ostensibly neutral laws can replicate and perpetuate subordination, to what extent is copyright law complicit in sustaining such hierarchies in the sphere of cultural production?
Copyright is concerned with the rights and interests of authors and owners, but also and equally with those of content users, consumers, and—more broadly—the public at large. There are, therefore, several routes into this empirical challenge. We might inquire into connections between gender and authorship (who is creating what kind of works and why?); gender and ownership (who is successfully claiming copyright and reaping its economic benefits?); gender and use (who is consuming or using what kind of works and what copyright-related barriers are they facing?); and gender and the public interest (are copyright’s incentive structures serving shared social goals and are the costs/benefits of copyright evenly borne?).
Along each of these avenues of inquiry, a feminist study should be ever alert to what the available information excludes: “What assumptions are made by law (or practice or analysis) about those whom it affects? Whose point of view do these assumptions reflect? Whose interests are invisible or peripheral? How might excluded viewpoints be identified and taken into account?” (Bartlett (1990), 848).
Importantly, feminist methodologies emphasize positionality, relationality, and intersectionality. A person’s position in the matrix of socially constructed roles and identities is necessarily dynamic, shifting, and contextual. This critical feminist insight should be brought to bear in respect of gender as a category of analysis, but also in respect of the static and individuated roles typically assigned in copyright studies: any person might occupy—at different moments or simultaneously—the various fluid and overlapping roles of author, owner, user, consumer, and citizen. Complicating these assigned categories—their limits, overlaps, and contradictions—is also part of the (feminist) empirical project.
Existing evidence and research agendas
Figure 1: Word cloud generated in response to key word search query ‘gender’ on Evidence Viz
Fifteen years ago, Ann Bartow rightly insisted that “reflection upon whether gender biases may be embedded in copyright laws and policies is both useful and necessary” (Bartow (2006) 558). Studies of the structure and application of copyright law would be enhanced, she suggested, by integrating evaluation of the gendered implications of copyright issues into ongoing scholarly inquiries: “gender is only one variable, but it is an important and largely immutable characteristic inherently present in any copyright circumstance that bears independent scrutiny.”
Nevertheless, empirical research on copyright that directly engages with gender remains relatively scarce in the literature. Only five studies in the Copyright Evidence Wiki are specifically designed to assess the implications of gender (Morris, Johnson & Higgens (2009); Tatum, Spoo & Pope (2009); Acilar & Aydemir (2010); Tzantzara & Economides (2010); Brauneis & Oliar (2016)). Of these, four are concerned with assessing attitudes towards infringing behaviours, three of which focus on the connections between gender and consumer attitudes.
Figure 2: Time line generated in response to key word search query ‘gender’ on Evidence Viz
There are, of course, many more empirical studies in the Evidence Wiki (46 by my count) that explicitly take gender into consideration as a potentially relevant variable when answering other research questions, but a large portion of these simply seek to ensure an approximate gender balance amongst respondents or to otherwise control for gender as a variable.
A frequent impetus behind empirical studies in copyright seems to be investigating the propensity to engage in copyright infringement or “piracy.” The assumption, which is often (e.g. Acilar & Aydemir (2010)) —but not always (e.g. Morris, Johnson & Higgens (2009), Robertson, McNeill, Green & Roberts (2012)) —borne out by the data, is that there is a greater tendency towards infringing behaviours amongst men than women. Several studies investigate or explain this tendency by analogizing between “piracy” and other criminal or objectively unethical behaviours (e.g. Morris & Higgins (2010)). Presumably, for reasons relating to gender socialization, women are less likely than men to engage in criminal activities, unethical behaviour, and copyright “piracy.” (The policy assumptions already embedded in these analogies should be clear enough: copyright infringement is “piracy”; piracy is theft; and theft is unethical.) These are, in my view, the least interesting findings insofar as they seem merely to confirm that women are socialized to be more rule-abiding and to engage in behaviours that attract approval—in a cultural context in which respect for copyright is the rule. Such studies typically conclude by pointing to lessons about how to educate consumers (Morris, Johnson & Higgens (2009)), identify more impactful social or legal penalties (Forman (2010)), and/or develop effective messaging to redirect consumer behaviour towards copyright rule-abiding uses (Morton & Koufteros (2008), Moores & Esichaikul (2011)).
More interesting, for our purposes, are the few studies that begin to reveal what it is about copyright infringement that might be regarded—by women more than men—as wrong. In one study, it was clear that female students found software piracy to be much less acceptable than did male students (Acilar & Aydemir (2010)). The greatest difference, however, was in response to the statement, “I think it is okay to use pirated games software for entertainment.” The lowest difference was in response to the statement, “I see nothing wrong in using pirated software if it is badly needed for the success of a project.” The extent of disapproval amongst female respondents, we might surmise, depended on whether the use was regarded as necessary or important for purposes beyond self-interest and personal enjoyment, reinforcing the notion that women may be more cause-oriented in their conceptualization of moral questions. Another study concluded that ethical intention simply has less bearing on males’ likelihood of engaging in “digital piracy”, with factors like Personal Moral Consequences and Self Worth Consequences found to have higher significance for females than males (Forman (2009)).
More interesting still are findings that shift the frame of analysis away from the criminal and unethical towards the positive and relational aspects of infringement/unauthorized sharing. Gender socialization theory suggests that males tend to conceptualize moral problems as a matter of rights and obligations while females are more inclined to conceptualise them as “problems of care involving empathy and compassion” (Acilar & Aydemir (2010), 4, citing Betz, O’Connell and Shepard (1989)). The key insight emerging from one study was that P2P exchanges between consumers may have “more to do with unexplored aspects of the phenomenon (such as…the ‘connectedness’ it makes consumers feel to others) and seemingly much less to do with traditional marketing mix variables” (Plouffe (2008)). The insight that consumers’ choices are not merely a matter of pricing or a predilection for piracy but rather a matter of social relations and human connections is surely an important one (consonant with feminist theories of copyright (Craig (2007)) that unsettles assumptions around the ethics of copyright infringement. Another study found that, while there was no significant gender difference in the propensity to “pirate”, males were prone to do so at a significantly larger scale than females because they were acting as “hubs in the social prestige enhancing distribution of pirated media” (Mandel & Suessmuth (2012)). This too reveals a gendered dimension to unauthorized sharing when examined in social context as a relational act rather than an instance of individual deviance.
Social norms loom large in an interesting study on copyright attitudes in the “filk” (science fiction music) community (Tatum, Spoo & Pope (2009)), which identified several gender-related differences regarding the practice and perception of musical borrowing. Female respondents were found to be less likely to borrow melodies, but more likely to define fair use as not profiting from others’ work, making only private use of it, or giving credit to the original author. While the numbers were too low for far-reaching conclusions, they support the intuition that women may be more inclined than men to focus on the interpersonal dimensions of appropriation, attribution, and audience, and somewhat less on legal requirements and permission-seeking.
Figure 3: Bar chart illustrating differences by gender on definitions of fair use (Tatum, Spoo & Pope, 2009)
Figure 4: Bar chart illustrating differences by gender on knowledge of copyright & IP law (Tatum, Spoo & Pope, 2009)
This also points to a well-recognized gap between legal doctrine and public perception/knowledge of copyright law, which is another area ripe for empirical study. The utilitarian rationale for copyright is, after all, built on the notion that the law incentivizes socially desirable behaviours (i.e., authorship and the dissemination of works). Yet, evidence suggests that “most people do not comprehend what the law is and do not concur with the rationale on which intellectual property laws are based” (Mandel (2013), 265). Particularly interesting, for our purposes, are the differing perceptions of IP held by men and women. Studies suggest that being female makes one more likely to believe that it is important to comply with IP law, and more likely to believe that copyright laws should be made stronger (e.g. Mandel, Fast & Olson (2015)). That said, evidence also shows that most people (mis)understand copyright laws as being primarily concerned with preventing plagiarism—hence the commonly held belief that proper attribution renders copying permissible (Mandel, Fast & Olson (2015), 943-4). Perhaps the kind of strong copyright that women tend to favour is considerably different than the kind of exclusive rights that it actually affords?
Figure 5: Bar chart illustrating differences by gender (and other factors) on importance of complying with IP law (Mandel, Fast & Olson, 2015)
The evidence clearly demonstrates cultural divides in attitudes to IP based on gender, age, race, wealth, and political ideology. These divides “are likely to affect intellectual property related actions, politics and discourse” (Mandel, Fast & Olson (2015), 970). As Mandel notes, people with different perspectives on IP can be expected to behave differently in respect of it. Empirical evidence indicating differences among men and women in their IP perspectives and preferences could therefore support contentions that the law currently “displays a male-gendered bias in certain regards” (Mandel (2013), 304). It could also illuminate alternative approaches.
These differences play out not only amongst consumers and users of copyright-protected content, of course, but also amongst creators. Because copyright theory assumes that protection incentivizes authorship, gendered differences in either the perception or reality of copyright’s rewards should be a significant cause for concern. Here, again, the few empirical studies available suggest a gender problem for copyright law.
A study of authors’ earning in the UK, for example, reveals a significant gender pay gap for professional writers, with female authors earning just 74.5% of male authors’ earnings (Kretschmer, Gavaldon, Miettinen & Singh (2019)). The study cautions that writing increasingly resembles an elitist profession, with the likely consequence being a lack of diversity amongst professional authors; here, as elsewhere, women—but especially racialized and socio-economically marginalized women—are likely to be disproportionately excluded from the ranks of professional authors.
Figure 6: Table illustrating differences in earnings by gender (Kretschmer et al, 2019)
The gender gap in respect of cultural production is further evidenced by studies that examine the state of the US Copyright Register. Particularly telling here is a study by Brauneis & Oliar (2016) of some 15 million entries on the register from 1978-2012, finding that registered authors are predominantly males, representing 70% of registrations in 1978, decreasing to 64% in 2012. (They are also predominantly white). While the gender gap narrowed over time in text-based fields, it remained consistent in respect of musical, dramatic, and artistic works, and males overwhelmingly dominated in film and software (88%).
Figure 7: Line graph illustrating copyright registrations by gender across different subject-matter (Brauneis & Oliar, 2016)
Underlying factors in the relevant fields of creative production (sexism in the film and tech industry, barriers to entry, labour and education policies, etc.) could go a long way to explaining such variations. Access to lawyers and legal expertise is surely also a contributing factor; these numbers do not represent all authors, after all, but only those with both the means and inclination to formally register works. The Copyright Register is nevertheless a source of crucial insights into patterns of cultural production (Oliar (2017)), helping us to “understand the demographic profiles of the authors who benefit from the operations of the copyright system” (Brauneis & Oliar (2016), 35). That the beneficiaries have been disproportionately male should, frankly, come as no surprise.
Future directions for research
While empirical research on gender and copyright remains limited, the evidence in the Copyright Evidence Wiki demonstrates that there are important connections to be explored.
Concerns with “piracy” have so far focused attention on gendered differences in consumer attitudes towards copyright. More work remains to be done, however, in exploring the ethical and social values that underlie these gendered differences, not only in women’s role as consumers, but also as creative users, authors, and copyright owners. This work should take up the methodological challenge of examining gender alongside other intersecting inequalities (see Shields (2008)). It should also look beyond legal, bureaucratic, and administrative systems in which rights are formally claimed or exercised to examine related social norms and practices such as sharing, borrowing, and attribution.
Looking across the studies within the Copyright Evidence Wiki, one has the distinct impression that women may be disproportionately burdened by the limits that copyright imposes—their activities and expression more likely to be chilled by real or perceived copyright restrictions and the importance attributed to them. Evidence shows, for example, that there is an enduring gap in women’s engagement in remix culture (especially when it comes to tech-centric media such as software and video-games) (Sinnreich & Latonero (2013)). At the same time, however, it seems clear that women are less likely to enjoy the benefits that copyright confers. They are less likely to be registered copyright authors and owners, and they are likely to earn less than men from their authorship activities. The final irony is that women appear less likely to question copyright’s fairness or legitimacy, or even to make use of the Creative Commons licenses that challenge traditional copyright management models (Sinnreich & Latonero (2013)).
In each of these respects, it should be emphasized, these gendered differences go directly to matters of social and economic equality and inclusion. As we gather evidence about how our copyright system is working, we must ask whose values the system reflects, whose creativity is rewarded, and who is excluded, silenced, or sanctioned. Gender is only one of many sources of identity that situate us in relation to copyright, culture, and law, but it “remains a category that can help to analyze and improve our world” (Bartlett (1990), 835). As Brauneis and Oliar write, “[b]etter information will enable both analysis and action to achieve a more open and diverse authorship scene that would enable all to participate equally in shaping our common cultural lives” (Brauneis & Oliar (2016), 38).
The point of such evidence-gathering, then, is not simply to develop strategies for sweeping more people into the existing copyright system on a more equal basis. (To invoke, as the solution, educating women about the benefits of IP or enabling them to more fully participate in today’s IP system always seems to me to miss the larger lesson (e.g. Brant, Marathe, McDole, Schultz (2019)). Rather, by identifying these inequalities, disparities and exclusions, the hope is that we gain insights into the shortcomings and oversights of the existing system and the assumptions embedded within it. The objective should be to illuminate the many ways in which copyright’s facially neutral policies could be revised or reinterpreted to better reflect our shared social values, more effectively serving the public interest in an inclusive, egalitarian, and participatory society.
List of additional sources (beyond core scope of the Copyright Evidence Portal)
Bartlett, K.T., ‘Feminist Legal Methods’, Harvard Law Review, Vol. 103, No. 4, 1990, pp.829-888
Bartow, A., ‘Fair use and the Fairer Sex: Gender, Feminism, and Copyright Law’, American University Journal of Gender, Social Policy & the Law, Vol. 14, No. 3, 2006, pp.551-584
Betz, M., O’Connell, L. and Shepard, J.M., ‘Gender Differences in Proclivity for Unethical Behaviour’ in Michalos, A. and Poff, D. (eds) Citation Classics from the Journal of Business Ethics. Advances in Business Ethics Research (A Journal of Business Ethics Book Series), Springer, Dordrecht, 2013, pp.321-324
Brant, J., Marathe, K., McDole, J., Schultz, M., ‘Policy Approaches to Close the Intellectual Property Gender Gap – Practices to Support Access to the Intellectual Property System for Female Innovators, Creators and Entrepreneurs’, World Intellectual Property Organisation (WIPO), Geneva, 2019
Burk, D.L., ‘Symposium: Feminism and Dualism in Intellectual Property’, Journal of Gender, Social Policy & the Law, Vol. 15, No. 2, 2007, pp.183-206
Craig, C., ‘Reconstructing the Author-Self: Some Feminist Lessons for Copyright Law’, Journal of Gender, Social policy and the Law, Vol. 15, No. 2, 2007 pp.207-268
Craig, C., ‘Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self’, Osgoode Legal Studies Research Paper Series, 42/2014, 2014, in Calboli, I. and Ragavan, S. (eds) Diversity in Intellectual Property, Cambridge University Press, Cambridge, 2015, pp.273-293
Gilden, A., ‘Raw Materials and the Creative Process’, Georgetown Law Journal, Vol. 104, 2015 pp.355-412
Greene, K.J., ‘Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues’, American University Journal of Gender, Social Policy & the Law, Vol. 16, No. 3, 2008, pp.365-385
Katyal, S., ‘Slash/Ing Gender and Intellectual Property: A View from Fan Fiction’ in Calboli, I. and Ragavan, S. (eds) Diversity in Intellectual Property, Cambridge University Press, Cambridge, 2015, pp.315-338
Kraut, A., Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance, Oxford University Press, Oxford, 2015 (reviewed by Craig, C., 8(1) The IP Law Book Review, Vol. 8, No. 1, 2017, pp.20-31)
Mandel, G.N., ‘The Public Perception of Intellectual Property’, Florida Law Review, Vol. 66, No.1, 2014, pp.261-312
Pollack, M., ‘Towards a Feminist Theory of the Public Domain, or Rejecting the Gendered Scope of United States Copyrightable and Patentable Subject Matter’, William & Mary Journal of Race, Gender, and Social Justice, Vol. 12, No. 3, 2006, pp.603-626
Rosenblatt, E. and Tushnet, R., ‘Transformative Works: Young Women’s Voices on Fandom and Fair Use’ in Bailey, J. and Steeves, V. (eds) eGirls, eCitizens, University of Ottawa Press, Ottawa, 2015, pp.385-409
Shields, S.A., ‘Gender: An Intersectionality Perspective’, Sex Roles, Vol. 59, 2008, pp301-311
Swanson, K.W., ‘Getting a Grip on the Corset: Gender, Sexuality and Patent Law’, Yale Journal of Law and Feminism, Vol. 23, 2011, pp.101-158
Swanson, K.W., ‘Intellectual Property and Gender: Reflections on Accomplishments and Methodology’, Journal of Gender, Social Policy & the Law, Vol. 24, No. 1, 2015, pp.175-198
Wishik, H.R., ‘To Question Everything: The Inquiries of Feminist Jurisprudence’ Berkley Journal of Gender, Law & Justice, Vol. 1, No. 1, 1985, pp.64-77