On the Feminist Analysis of Copyright Law and Intellectual Property

In Canada, copyright law and matters of intellectual property are stipulated in the Copyright Act. However, the Copyright Act was established in 1985, and times have since changed drastically with the rise of the internet. From debates on whether Internet Service Providers such as Bell create or merely facilitate content (Society of Composers, Authors & Music Publishers of Canada v Canadian Assn. of Internet Providers) to a reversed class action lawsuit attempting to catch internet users who illegally download movies (Rogers Communications Inc. v. Voltage Pictures, LLC), the current Copyright Act has shown its limits with the advent of a borderless internet. Beyond the Copyright Act, concepts of copyright and intellectual property themselves are outdated and based on primarily male views of knowledge, property, and creativity, with little regard for women’s traditional knowledge; as such, they support a gender inequality with economic impacts (Bartow 552). Today, I’ll attempt to use the prevalence of women in internet fan cultures to examine the feminist analysis of copyright and intellectual property and hopefully provide a different take on a debate that has long-since plagued fan spaces and other digital communities. In doing so, I hope to address the nuances of legitimacy, labor, and remix culture in creative works, which will further make a supportive case for Margaret Davies’ view of creative property as an interpersonal relationship (345).

Davies’ view of creative property is that of a relationship between people that affords not only rights, but responsibilities, as it recognizes the plethora of connections that lead to singular creative works (345). This is in contrast to the independence that the current view on copyright inspires, due to its placing ownership on individuals, which is a prioritization rooted in male ideas of creativity (330). Nowhere is the feminist view of creativity as a product of many interpersonal relations more relevant than in the examination of internet fan communities, known colloquially as “fandom,” which are predominantly female (Kalinowski 656).

Today, fandom is built on the remixing or transforming of original media. This can take form in any number of ways, from fanfiction to video edits (Kalinowski 658). Where controversy arises is when one takes into account how these remixed or transformative works legally fit into the world (Greenhill 441). In her critical consideration of artistic practices and intellectual property, Pauline Greenhill observes a grey area in intellectual property law: works that aren’t seen much or are seen as “bad” fall into an odd category where they are viewed as illegal (441). She notes how this is a result of viewing feminist art as challenging a hegemonic patriarchy—a notion that bleeds into intellectual property laws, and furthermore, our capitalistic society (442). Because internet fan communities are dominated by women, their artistic works can be, as a whole, seen as feminist art, or a way to escape discriminatory, male-dominated creative works in mainstream mass media (Kalinowski 662).

Why might the phenomenon of women dominating fandom exist? Women are underrepresented and misrepresented in mainstream media, and this void is a difficult one to ignore (Kalinowski 662). As such, fanworks are used in a number of ways to fill this vacuum. Kalinowski argues that fanworks such as fanfiction give voice to marginalized communities through the mouthpieces of established source material and focus on “controversial” themes that otherwise are not explored in the media that pervade our everyday lives (664). The sharing of these fanworks, however, bring into question the concept of legitimacy. Monica Flegel and Jenny Roth note the intrinsic power dynamics that exist within internet fan spaces as fans and authors alike grapple with the idea of legal legitimacy, economic legitimacy, and creative legitimacy (“Legitimacy, Validity, and Writing for Free” 1092).

The very idea of creating fanfiction for free prompts anxiety over the cost and value of creative labor, which further undermines the notion of writing as a profession (Flegel and Roth, “Legitimacy, Validity, and Writing for Free” 1093). If fan writers are producing content based on the source material for free, then why should the original creator profit from the content? The answer that authors offer more often than not is that they put in more legitimate labor (1093). Currently, there exists the preconception that fanfiction is of a lesser value and quality than professional writing and published works due to a lesser amount of labor that is required to write it (1094). This idea is not unfounded, as critics of fanfiction indeed have a valid point to make: in writing fanfiction, a fan writer does not typically go through the laborious process of creating characters (1095). However, one glance at popular works of fanfiction will dispel the myth that creating fanfiction does not require “brainwork” (1095). Many fanfictions take place in alternate universes that are completely separate from source material, and the very act of taking characters out of their original contexts to experiment with another story that often explores more polemical topics of gender and social thought (Kalinowski 664) is labor in and of itself (Flegel and Roth, “Legitimacy, Validity, and Writing for Free” 1098). One instance of this is World Ain’t Ready by Jessica “idiopathicsmile” Best, a large fanwork at 185 796 words that tells the story of a high schooler coming of age and grappling with both self-acceptance and acceptance of failure (Best). To contextualize this feat, Becky Albertalli, the author of Simon vs the Homosapiens Agenda and Leah on the Offbeat, stated that, across both young adult books dealing with similar subject matter, she wrote around 158 000 words (Albertalli). World Ain’t Ready is known as the most popular fanfiction of Victor Hugo’s Les Misérables, but one could easily replace the names and be faced with professional writing—with all the expected labor of an original work included, as Best paints layers of complexity and undeniable humanity onto characters who, in the source material, are static and arguably homogeneous. The issue with intellectual property and fanworks, then, is not the concept of legitimate labor, but rather the very idea of ownership, which is fundamentally patriarchal.

Ownership in published creative works is viewed through a masculine lens where the one who does the labor is the sole proprietor of the content (Flegel and Roth, “Legitimacy, Validity, and Writing for Free” 1094). This is part of what Terra L. Gearhart-Serna describes as the “invention paradigm” in her paper, “Women’s Work, Women’s Knowing: Intellectual Property and the Recognition of Women’s Traditional Knowledge” (374). The United States’ intellectual property system incentivizes inventors by guaranteeing exclusive rights to their inventions (376). The ideal inventor is described as male, creative, intelligent, and exploitative of natural resources to solve problems or contribute to the “sciences” and “useful arts” (377). This results in the dismissal of creativity from women and forces female creators to use masculine ideas of knowledge and science to be recognized (380). Along with being detrimental to women as a whole, this system is arguably more problematic in that it further discriminates against women of colour and Indigenous traditional knowledge (Foster 263). Overall, current intellectual property law fails to acknowledge female and traditional knowledge, as well as the place that female creators have in today’s creative world, due to its fundamental misconstruction of remix culture.

Remix culture, at its heart, is the very exemplification of Davies’ view of creative property because it could not have come about without the relationships between fans, authors, and creative works. Remixed works go so far as to rely on the meanings from the source material used—fan-made animated music videos are an example of such works in that they blend lyrical meaning or musically invoked atmospheres together with visual scenes or juxtapose them to convey a new narrative (Knobel and Lankshear 24). Jacques Derrida suggests that fanworks are archontic; that is to say, fanworks are constantly changing and re-contextualized based upon and within other stories they are produced (3). In another study, Flegel and Roth conclude that copyright law is not equipped to operate with today’s remix culture, which stem from producers and prosumers alike (“It’s like rape” 901). Their research examines the patriarchal, colonial rhetoric that authors use when justifying their animosity towards fanwork (905). There exists a narrative that producers of fanwork are barbaric pillagers of intellectual property and that their theft of characters is akin to rape (905). This metaphor carries meaning beyond illustrating the depth of offense these authors feel fanworks invoke—it inspires familiar, patriarchal ideas of ownership that allow their work to be viewed more concretely within copyright law (905). Fans, however, counter this argument with the reality of the situation: that characters and worlds are ultimately ideas, and that to humanize them is prescribe a false narrative on their being remixed into fanworks (905). This debate is a microcosm of the overall debate between remix culture and intellectual property law, as remixing involves taking existing, copyrighted material and creating something new out of unauthorized access and use (Hetcher 1872). Fandom, as part of remix culture, can thus be seen as a subversion of traditional, male ideas of ownership and a way to assert female power within the patriarchal architecture upholding copyright law and intellectual property rights.

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