Neil Turkewitz posted the following blog in honor of World IP Day 2018, in keeping with WIPO’s theme that year of Powering Change: Women in Innovation and Creativity. We are pleased to now republish his post as we celebrate International Women’s Month 2020 throughout the month of March.
According to the World Intellectual Property Organization (WIPO/OMPI), “This year’s World Intellectual Property Day campaign celebrates the brilliance, ingenuity, curiosity and courage of the women who are driving change in our world and shaping our common future.” I would amend that somewhat. I want to celebrate the women who are working to ensure that we have an “uncommon future.” After all, intellectual property generally, and copyright in particular, is a celebration of the original. The quirky. The unique. The “uncommon.” A counterpoint to the commons. Unlike so much of our world, copyright is the celebration of the right of the individual to determine the contours of her consent. That’s a powerful and empowering right. And it’s under siege.
If you will forgive me this general observation, the internet and present societal norms and expectations concerning internet conduct are built on a very male model in which consent is assumed. It is the default of the internet, and objections to it are exceedingly hard to enforce. Securing permission creates friction. It’s messy and non-linear. Inefficient and non-binary. If achieving maximum efficiency is an engineer’s objective, he will see permission as an obstacle to be circumvented. If you don’t want to be rejected, you don’t ask the question. If you are male, white and straight, gains in efficiency will likely override any concerns about the role of consent. But someone who is a part of a community in which consent has historically been undermined, undervalued or eliminated might employ a different balancing test. In short, women and people of color have a unique relationship to the exercise of free will as manifested through the ability to determine consent. And the “maleness” of the internet once again marginalizes them and exposes them to extreme risk. So this World IP Day, let’s celebrate the women that are fighting back. Fighting to safeguard privacy. Fighting to address revenge porn and sex trafficking. Fighting to ensure that a creator has the ability to determine how her original work is going to be used. These are all reflections of the same underlying challenge — how do we ensure the role of consent in a technological environment that celebrates “breaking things” in pursuit of “permission-less innovation?”
Women have a unique relationship to the notion of consent, and their leadership in the copyright community is evident and important. I don’t think it’s accidental that four out of the past six Registers of Copyright are women — copyright offers a model of spiritual empowerment and economic self-determination that sets it apart from conditions of society generally. The careers of Barbara Ringer, Marybeth Peters, Maria Pallante and Acting Register Karyn Temple reflect their understanding of the emancipatory nature of copyright, and the specific and general value of ensuring a person’s right to determine the condition’s of one’s existence. Copyright, at least on a theoretical level, represents the aspirational goals of feminism — that “no” means no, and that a person’s right to consent is not affected by the expectations of her audience. Sadly, in the online world, much like its offline counterpart, this obeisance to the role of consent remains tenuous. Ironically, however, no one in the offline universe champions lack of consent as a virtue. That consent must be foregone in order to achieve societal progress. But that is very much a part of the online world in which both personal and state sovereignty are decried as a rebuke of modernity.
So this World IP Day, let’s celebrate those women leading the fight to expand the exercise of consent in a hostile environment. Let’s commit to changes in internet governance so that it is no longer acceptable for consent to be assumed. Let’s strengthen the tools by which consent may be effectively exercised. There are women fighting different parts of this critical battle all around the world. Sandra Aistars at the Center for the Protection of Intellectual Property at GMU and former head of the Copyright Alliance who each and every day imparts her knowledge of, and passion for, the role of copyright in advancing the human condition. My dear friend and jazz orchestra leader, the fierce Maria Schneider whose very music warns of the consequences of a world in which we are stripped of our agency.
The Swedish songwriter and journalist, Helienne Lindvall who works tirelessly to ensure that copyright doesn’t exist in name only. Miranda Mulholland, Canadian songwriter, performer and indie label owner who found time to “boldly put herself at the centre of the debate surrounding artist royalties by laying out in a much publicized speech to the Economic Club of Canada the sad truth of the meager earnings she and the vast majority of Canadian musicians receive for their work in the new digital industry.”
Jane Ginsburg, Professor at Columbia University School of Law, whose professional life has been dedicated to securing an understanding that, as the Supreme Court held in its 1954 decision in Mazer v. Stein, We all benefit from the “sacrificial days devoted to . . . creative activities.” Ruth Vitale, CEO of Creative Future who reminds everyone that copyright sustains the livelihoods of countless creative workers. Mary Rasenberger who as Executive Director of the Authors Guild fights to provide necessary oxygen to sustain the next generation of storytellers. Helen Smith, Executive Chair at indie label organization, Impala, who champions copyright as a tool for cultural diversity and economic development. Ellen Seidler, independent filmmaker who has carefully and publicly chronicled her descent into the nightmare that independent creators face when trying to protect their works online, and whose blog — Vox Indie, should be mandatory reading for anyone involved in internet governance.
And women like Mary Anne Franks fighting for tools to ensure that women have the ability to enforce their decisions about the depictions of their bodies, or Mary Mazzio illuminating through documentary film-making (I am Jane Doe) the need for changes in internet governance rules so that internet platforms can’t turn a blind eye to sex trafficking on their sites. Danielle Citron who forces us to examine the world as it exists and to pay attention to effects and not just modalities — to understand the disparate impact of internet freedom on various communities, and how “after ten years of sustained research and public conversation about the phenomena of cyberstalking and harassment, it is undeniable that not everyone can freely engage online. This is especially true for women, minorities, and political dissenters who are more often the targets of cyber mobs and individual harassers.” She challenges the “belief that disruption is either intrinsically a good thing or that “innovation” tends to produce new good things rather than new bad ones,” noting that “in the two decades since the Internet’s adoption, our lived experience has not fulfilled these revolutionary promises. Digital technologies certainly have the capacity for revolutionary liberation, but they can just as easily be used for oppression.”
And of course, Zeynep Tufecki, who has been at the vanguard of warning about the dehumanizing effects of the surveillance economy — effects which remove human agency and the role of consent while clothed in the accoutrements of freedom. She writes: “This state of affairs is unacceptable but not inevitable. There is no reason to let companies…reap financial benefits while asking society to bear so many of the costs.”
We find ourselves at a moment of potential change. The orthodoxies underlying tech exceptionalism and internet platform business models are being questioned and disrupted. We have a unique opportunity to effect reforms to our legal system to empower individual decision-making and enable meaningful consent. This time around, let’s listen carefully to communities for whom consent has traditionally been marginalized. If we do, we’ll build a better world.