By Dan L. Burk, Chancellor’s Professor of Law, University of California, Irvine, USA
Intellectual property (IP) law is generally recognized as a means to celebrate and reward the contributions of creative individuals by giving them legal exclusivity over their creations for a period of time during which they may determine who may exploit their work – possibly in return for a fee.
This is believed to generate incentives for creativity not only for the benefit of creators, but also for the general benefit of society. It therefore follows that to the extent that IP law fails to engage or recognize creators, it fails in its essential purpose. Unfortunately, there is growing evidence that it has dramatically failed a large group of creators.
IP and gender: an historical perspective
For much of modern history, and certainly in the early days of legal grants in IP, the formal roles from which IP might arise were closed to women. The creative occupations of artist, engineer, writer, scientist and musician were dominated by men, if not exclusive to men. At that time, social convention frowned on female activity in such professions. IP law, as it developed, followed such social prohibitions. For example, as noted by Professor Shelly Wright, copyright historically encompassed the “fine arts” such as sculpture, painting, literature and music – fields that were male dominated if not exclusively masculine, with “crafts” such as needlework, knitting, quilting and other “domestic” fiber arts until relatively recently excluded from the canon of copyrightable subject matter.
Similarly, where women developed inventions or creative works outside formal professional settings, social or legal recognition of such work was considered taboo. In some cases, creative works by talented women were circulated anonymously or pseudonymously. This was the case, for example, with Clara Schumann, spouse of the celebrated Robert Schumann, and Fanny Mendelsohn, sister of the widely acclaimed composer Felix Mendelsohn. At that time, acquisition of patents or copyrights was viewed as improper for women. Careful historical reconstruction has revealed clues suggesting patents for inventions produced by female inventors were taken out in the name of a brother, father or husband. For example, when Sybilla Masters developed a way to process Indian corn in 1715 and her achievements were recorded in the patent document, the associated right was issued to her husband. At that time, the prevailing laws stated that women could not own property.
A persisting IP gender gap
Thankfully, social views have changed, and there are now few explicit deterrents to female inventors and creators. But strong evidence of latent gender bias remains. For example, when looking at modern patent filings, it is clear that a substantial gap exists between the number of female and male patent applicants; women are conspicuously absent in every aspect of the patent system. This gap varies somewhat by jurisdiction; patent applications include a female inventor only about 4 percent of the time in German-speaking nations, only 10 percent of the time in the United States, and around 20 percent in a number of Spanish-speaking nations. In no case does the number of patent filings by women approach anything near population parity. Perhaps not surprisingly, studies of patent law practitioners also show the number of female attorneys and agents to be dramatically lower than that of male practitioners.
The most immediate and natural response to such statistical information is to advocate in favor of greater inclusion of women in the technically oriented “STEM” occupational fields, that is, science, technology, engineering and mathematics. Entry and retention of women in these technical fields is notoriously poor despite initiatives to make opportunities available. But these are the fields from which patentable inventions are most likely to arise. With fewer women in STEM fields, one would expect categorically fewer patent applications from women; conversely, if the number of women in STEM fields were to increase, one would expect larger numbers of patent applications from women.
While there are many compelling reasons to advocate increased female participation in STEM areas, and such increased participation would likely boost the overall number of patent applications by women, diminished numbers of women in technical fields is clearly not the sole cause of their lower level of engagement with the patent system.
More than a numbers game
her own right, but her work often came second to that of her
husband, Robert Schumann. Indeed she was often
characterized as her husband’s helper (photo: Granger Historical
Picture Archive / Alamy Stock Photo).
The gender gap in patenting is too complex and intractable to be solved by simple numerical parity. This has been empirically demonstrated in cohort studies that compare similarly situated men and women in STEM occupations. These studies indicate that the women who are already in STEM fields engage the patent system far less frequently than their male counterparts.
Female scientists and engineers are less than half as likely to obtain a patent for their research as their male colleagues. This effect occurs in both academic and industrial settings, although it is less pronounced in the latter. The patenting gap appears to hold true across all ages and all cohorts of women in STEM fields, despite the rising total number of women entering these fields. Indeed, the gap is also evident in sectors like the biological sciences, which have been most amenable to female entry and include a larger number of female researchers. Comparisons of other metrics for research significance, such as research grant awards, do not reveal this gap, and when female researchers do obtain patents they appear to be as significant as those obtained by their male counterparts. Thus, the gap in patenting does not appear to be attributable to the merit or significance of research results.
Such quantitative studies can outline certain parameters of the problem, but are limited in their ability to identify the source of the patenting gap. At some point they must be supplemented by qualitative research to fill in missing details. Ethnographic studies undertaken by a number of researchers indicate a complex of social barriers continue to deter even present-day female inventors from engaging with the patent system. Detailed survey and interview data indicate that women in STEM fields have developed social responses that deter their participation in patenting and commercializing their research. Female scientists and engineers are less likely than their male counterparts to think about commercializing their inventions, and are less comfortable marketing themselves and their work to potential business partners.
These internalized responses are then reinforced by socially-structured obstacles. Female scientists and engineers are more likely to be excluded from social networks that would enable them to get support for commercializing their outputs; for example, they are less likely to be invited to sit on prestigious scientific boards or advisory panels where they could meet potential innovation partners. And from the other side of the table, there is evidence that essential partners such as venture capitalists and other financiers are less likely to take seriously proposals from female innovators than from their male counterparts.
Lack of data
Charlotte Smith spearheaded one of the earliest attempts
to accurately count women inventors. Thanks to her efforts,
the United States Patent Office compiled the first official
list of women patentees in 1888.
Evidence therefore suggests that there is a clear and recalcitrant gender gap in patenting, but what of other creative areas? Much less is known regarding copyright, as most of the empirical work done to date on gender in intellectual property has concentrated on the patent system. This is not because copyright poses less of a concern; informal or anecdotal observations regarding the participation of women in the creative industries that thrive on copyright protection – publishing, movie making, music recording – suggest that females in those industries may be no better off than those in technical industries that rely on patent protection.
Rather, patenting more readily lends itself to empirical study because patents only issue after administrative review of a patent application. This generates a considerable body of data which can be easily collected and made available for statistical scrutiny. This is generally not the case in other areas such as copyright. Unlike patents, copyright arises spontaneously upon fixation of an expressive work, and under international treaties such as the Berne Convention for the Protection of Literary and Artistic Works administrative formalities are not a prerequisite for the grant of copyright. As a result, there are fewer data available to assess use of the copyright system than for the patent system, making empirical assessment of gender in the copyright system more challenging.
In the United States, however, U.S. copyright law sets out strong statutory incentives for creators to register their works with the Library of Congress, and these data offer interesting insights. For example, recent pioneering work by Robert Brauneis and Oren Bracha on the registration data generated by the United States Copyright Office for gender trends indicates that registered authors are overwhelmingly male.
This effect differs by category of copyrightable subject matter: it is least pronounced in filings for artistic and textual works and more prevalent in the categories of music and motion pictures, where more than three-quarters of registered works are authored by men. Movies and textual works have shown modest increases in female authorship in recent years, whereas the number of music-related registrations by women has remained static. Unsurprisingly in light of women’s participation in the patent system, the lowest rate of female authorship is found in the area of software registrations. The study also discloses several additional interesting patterns in authorship that point to other potential biases in the social structure of creative activity; for example, the data show that coauthors are significantly more likely be of the same gender.
Gender bias in IP laws?
While myriad social factors are at work in generating such gendered outcomes, a particular concern is that IP laws that are ostensibly gender-neutral may put women at a distinct disadvantage. A growing body of legal scholarship is exploring the latent assumptions and unexpected outcomes related to patent, copyright and trademark doctrines.
Beyond that, however, the interaction between IP and other social structures may play out in unexpected ways. Cultural ethnologist Boatema Boateng, for example, discusses the sale of machine-made cloth that incorporates patterns resembling those in traditionally made fabrics. She found that local weavers invoked statutes protecting traditional crafts and knowledge to prohibit the sale of imitation cloth and that those laws appeared to function as intended – that is, until broader perspectives, including gender, were taken into account. On closer inspection, she found that in Ghana, the focus of her study, weaving is traditionally a male occupation, and the infringement claims were brought by male weavers against small business operators who were primarily female. Here we see that an ostensibly neutral law unexpectedly helped to reinforce long-standing gender disparities within the community in question.
While considerable work remains to be done to fully understand the root causes and scope of gender disparities in IP, what we have learned so far suggests various solutions that may help to bridge the gender gap. In this respect, longitudinal comparisons indicate that early exposure to inventors and innovation fosters innovation later in life. Clearly education, information and the provision of role models must play an important role in the uptake and use of IP across genders.
