Feminism and Dualism in Intellectual Property

24 Pages Posted: 6 Sep 2006 Last revised: 6 Oct 2015

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: September 1, 2006


Intellectual property law constitutes one of the primary policy tools by which society influences the development and design of new technologies. However, the underlying philosophical basis for this system of rewards has gone largely unexamined. For example, implicit in the intellectual property system is a strong element of mind/body dualism that informs the incentives for technological development. In copyright, the work created and owned by an author is idealized as an intangible form, which may be embodied or fixed in a tangible medium of expression. The parallel patent law doctrine of inventorship shows an even more striking pattern of dualism. In the United States patent priority is decided primarily on the basis of conception of the invention in the mind of the inventor; the actual building or reduction to practice of the invention is held largely irrelevant.

Similarly, both patent and copyright doctrine entail a strong element of nature/culture dualism. In patent law, this manifests as the product of nature doctrine, holding that only the products of human effort are patentable, and not discoveries drawn from nature. In copyright, facts and other natural occurrences are excluded from copyright as being unoriginal, that is, not originating from the creativity of an author. Both systems assume that facts or properties embedded in the fabric of reality can be separated from the human activity that observes and defines such facts and properties.

This paper suggests how the tools of feminist theory might be used to interrogate such assumptions in intellectual property law. Feminists have critiqued the tendency of Western philosophy and practice of dividing the world into oppositional categories, including those of mind versus body and culture versus nature, where the former category is regarded as superior and masculinized, and the other considered inferior and feminized. Typically such dualisms are revealed as relational and rhetorical strategies for maintaining certain patterns of dominance and privilege. Similar patterns can be recognized in the intellectual property system for rewarding innovation and creativity.

Keywords: feminism, dualism, patent, copyright, intellectual property, gender

JEL Classification: O31, O32, O33, O34, K29, K39, J16, J71, J78

Suggested Citation

Burk, Dan L., Feminism and Dualism in Intellectual Property (September 1, 2006). American University Journal of Gender, Social Policy & the Law, Vol. 15, 2007; Minnesota Legal Studies Research Paper No. 06-43. Available at SSRN: https://ssrn.com/abstract=928421 or http://dx.doi.org/10.2139/ssrn.928421

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
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949-824-9325 (Phone)

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