Bridging the gender gap in intellectual property

• Author: Dan L. Burk
• Position: Chancellor’s Professor of Law, University of California, Irvine, USA

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...