There are millions of words that have been written both by conservative and progressive judges, lawyers, scholars, political scientists, social scientists, historians and journalists on various judicial philosophies and interpretative doctrines, but the influence of the status of the litigant in influencing judicial decision making has rarely been theorised, analysed and documented.

Judging is also personal, “in the sense that judges’ personal attributes including background characteristics such as race and sex; personality traits such as authoritarianism and professional and life experiences, such as having been a prosecutor or having grown up in turbulent times-influence judging”, according to conservative Judge Richard A. Posner. There is also a nonpolitical and nonpersonal dimension to judging: the “legalist” factor which is the neutral application of the rules not made up for the occasion to facts fairly found.

According to Posner, legalism however fails at a deeper level to refute the hypothesis that political and personal leanings influence judicial decisions in cases that arise in “dauntingly complex, uncertainty-riven legal system”.  Most constitutional and statutory provisions are open-ended and can be read in different ways- this is certainly true of many of the provisions found in our intellectual property statutes. Most are written that way deliberately to allow for the discretionary judicial interpretation that takes into account the myriad factual situations that arise.

It is the thesis of this blog that apart from the political, personal and legalistic factors that push the judge to judge one way or the other, the status of the litigant or litigant-related factors also influence the trajectory of the decision-making process. If judges can decide a case,  taking into account the political consequences of their decisions, so do they decide cases with a view to the  consequences for the particular litigant.

Could there be cases in intellectual property law that are litigant-propelled?  This is a good area for future research. Feminists have in the recent past deconstructed that intellectual property law has historically discriminated against women. Intellectual property law has been designed by men to propagate male-oriented and male-serving intellectual property regimes.  It is logical that these male oriented intellectual property regimes would be more friendly and has historically been more friendly to male litigants. In his book, The Spinster and the Prophet, Mckillop tells the compelling story of Florence Deeks, who lost her legal battle against H.G. Wells in spite of significant evidence of unauthorized copying.

Was the intellectual property law case of the Law Society of Upper Canada decided by the Supreme Court of Canada decided the way it was (allowing the LSUC to copy and distribute copyrighted materials) because of the litigant status of the Law Society as a group of lawyers and judges as lawyers?  Is it possible that Supreme Court Judges were more sympathetic to the members of the legal community than they would have been to a different user group?

Was the Da Vinci Code case decided the way it was because of the litigant status of  Dan Brown, the author of the Da Vinci Code, who had grown astronomically successful in the world of authorship? The book became a brand name and he became a publishing empire. He became too big to be destroyed.  Could the courts disturb that phenomenon?

These are questions that are worth exploring and they lend themselves to analysis based on the “litigant-propelled” or “litigant status” schema.

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Feminism along with marxist, critical legal studies and critical race theories have mounted serious challenges to the inherited western legal tradition that has claimed that law is neutral and objective even though law, from time immemorial has neither been class, gender and race neutral nor objective. There was a time when slaves, poor people, aboriginals, women and blacks could not vote; when women, aboriginals and blacks could not serve on juries or go to school; when women, aboriginals and blacks could not own property; indeed when blacks were property of others themselves; when women could not enter into contracts; when women, aboriginals and blacks could not be lawyers; when blacks could not enter a room or drink water through the door or fountain used by white people; when blacks and aboriginals were enslaved or colonized; when women and black people’s evidence in courtrooms was only accorded half the value of evidence given by a white man etc etc. Yet law managed to claim and still claims that it is neutral and objective.

The assault of feminism, marxism, critical legal studies and critical race theorists on the supposed neutrality and objectivism of the western legal system has to some great extent engendered palpable paradigm shifts and intellectual understandings of the actual designs of the law and along the way, major reforms have occurred: women and black peoples’ evidence is accorded on the surface the same weight as that of the white men; anyone can serve on the jury and can vote and go to school and slavery is prohibited; women can enter into contracts and own property. But there are still major problems experienced by women, aboriginals and the developing world in gain fully equal recognition and status in the dispensation of intellectual property law. Feminism is perhaps the most potent intellectual current that is deconstructing this area of legal impairment.

Feminism, marxism, critical legal studies and critical race theories while aimed at deconstructing the actual design of the law and the purposes served by law and in whose interests and to whose disadvantage, approach the analysis of law from different situational and experiential perspectives: feminism examines the law from the point of view of the interests of women; marxism from a class point of view; critical legal studies from power relations point of view and critical race theorists from the point of view of race dynamics. These systems however are not totally exclusive or totally dismissive of other perspectives (though marxism comes close). Further, within some of these perspectives are contained various strands of thought: in feminism for example, there are: marxist, socialist, radical, conservative and liberal feminisms and other strands that I have just recently encountered eg “difference feminism”. All these strands emphasize different aspects of concerns within the feminist framework.

While aware of the different strands within feminism, several feminist intellectual property scholars emphasize the need for a clear- cut broad dichotomy between female perspectives as a group and the male oriented and designed legal constructs. Only by looking at it in this polar opposite way can the phenomena being examined be brought out in clear and sharper perspective. Women and men have broadly experienced law differentially. This includes intellectual property.  While feminism has examined many other areas of the law and exposed their chicanery- family law, criminal law (rape, prostitution, evidence), property law, immigration law, contract law employment law, business law and others, feminism has not looked at the impact of intellectual property law until recently. But like the other areas of law, intellectual property was male designed and male oriented to the total exclusion of the interests of women. Intellectual property law as designed by men was totally inimical to the interests and nature of women, qua women. Like many areas of law, intellectual property therefore has gendered aspects. Each of the articles described below gives examples of this gendered nature of intellectual property law.

Burk in “Copyright and Feminism” states that the neglect of intellectual propoerty in feminist analysis is surprising given its increasing prominence and potential impact on the quality of life for millions of men and women across the world. In another article, Burk, in  that intellectual property law constitutes perhaps the primary policy tool by which society influences the development and design of new technologies. Others have stated that intellectual property is the most potent form of modern imperialism. Intellectual property as it is designed expropriates the inventions and cultural artifacts of not only women but developing countries and aboriginal communities as well. So studying and denconstructing intellectual property is of the utmost importance.

Why is the feminist framework important in analysing intellectual property? Burk  answers that “a feminist approach encourages us to ask not so much where such intellectual property doctrines require us to draw the line between creativity that is rewarded and creativity that is not, as it requires us to ask why such criteria was selected in the first instance” (p.5). Why is intellectual property designed the way it is: gendered if you look at it from a feminist perspective; class oriented if it is examined from a marxist perspective; race and culturally and national specific (or developed and developing world-divide) if you examine it from the critical race perspective--a perspective that is inclusive of aboriginal perspective and power-driven if you examine it from the critical legal studies framework.

Bartow  in “Fair Use”seems to answer this question perfectly: “Many substantive bodies of law have fairly obvious gendered apects” (p. 4) as already mentioned.  Not only that but “copyright laws were written by men to embody a male vision of the ways in which creativity and commence should intersect” (p.8). On top of this “men dominate congress {law making body} and the federal judiciary {Law interpreting body}. “Men have defined key copyright concepts such as “authorship” “protectability” “infringment” and related terms”.  Men defined that copyrightable items must constitute saleable “property”--a masculine construct according to Burk, best suited for “industrialized commoditization” (p. 9) and this realm excluded arts and crafts which were consigned to the domestic realm. Commercial exploitation is the subject of copyright.

Intellectual property has had the effect of the marginalization of women’s work and creativity. Pollack in “Towards a Feminist Theory” covers this well in her article. Intellectual property ignored to cover areas of practice engaged in by women: food and the clothing processing industry. Intellectual property rewarded the so-called individualist and solitary productions of single actors (men) exemplified by copyright grants to authors-mainly men and patent grants to sole inventors-mainly men to the exclusion of communal, collective and group endeavours engaged in by women.

Shelly Wright in “A Feminist Exploration” examines at length how “intellectual property law may be implicated in the exclusion of women and the denigration of an artistic tradition where women have contributed: the English novel and needlework” (p.60). From the beginning of copyright law regime in England, “female painters, sculptures, engravers, printers and craftsmen were largely ignored by the artistic establishment” (p.71) and this tradition continues to some extent in the present times. Another clear example of gendered relationships in intellectual property that is commonly discussed is that of food and clothing processing. The exclusion of food and clothing processing from the copyright regime is gendered.

Pollack argues that since 1976, genderization of intellectual property has increased because of Congress’s enlargement of private ownership rights at the expense of the public domain, which Pollack claims to be inherently feminist, i.e the public domain. The reasons for characterizing the public domain as feminine are the following: it is not commodified; it recognises the communal roots of creation, rather than the atomized solitary and romanticized individual “author” or “inventor”; the public domain is concerned with “nurturing” and it provides essential nourishment by the “birthing and lactating mother”.

As these articles reveal, feminism has much to tell us about intellectual property law.

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