A recent study where close to 2 million books published between 2002 to 2012 were surveyed found that books written by women are priced 45% less than the books authored by men. This does not mean that the work created by women is not valuable. It just means that the work created by them is not valued enough. The tension is not only in the pricing of these books and the royalties that these women receive. Even the rights conferred on women with respect to their independent works are skewed in nature.
A deeper examination of the copyright law in India reveals that it is gendered in nature. The copyright law assumes that everyone has had equal access to knowledge. But that is not true because women have been systematically denied knowledge and access to education. This has been a recurring trend right from the patriarchal dictates of Manusmriti up till the digital gap of 2021. In what follows in the proceeding paragraphs, I will examine various literary works that are exclusively or mostly used or produced by women due to their social conditions and will evaluate if the law is effective in protecting the interests and copyright of women readers and authors.
The first example is public libraries. Their proliferation has facilitated the spread of knowledge to many women who cannot buy expensive books and have never been to schools or colleges. However, section 52 of the copyright act only allows for the exception of fair use insofar as a reproduction of books is done during the course of instruction and not for the ones who don’t get to go to school. Thus, the reproduction of books by public libraries which can benefit women is not covered under the fair use exception and counts as copyright infringement.
Further, women in music and literature are relatively lesser in number because they could not own property for a very long time, and they did not have the means and resources to work in such areas that men dominated. Thus, they have been able to develop traditional knowledge in areas like culinary, weaving, knitting etc. ever since the advent of the internet; women have been using various blogging platforms to share recipes, weaving techniques and knitting techniques with a considerable viewership; however, the copyright law does not protect any of these works.
With regard to recipes, copyright law only protects them when they are collated in a book. This protection leaves out a huge number of women who might not have the resources like money and access to publication houses to get their recipes published in a book. It is much more economical for them to share their skills over the web, but that is not protected by the copyright act.
As far as weaving and knitting techniques are concerned, intellectual property protection is given under patents. But that is also gendered in many ways because, unlike copyrights which do not require registration and exist in and of themselves, patent registration requires complicated legal rigmarole that might not be very economical and accessible to the women with limited financial resources and agency.
Further, copyright can be obtained over a work only when it is original. The court in Eastern Book Company v. D.B. Modak, has clarified that for a work to gain copyright protection, there should be a Modicum of Creativity, that is to say, that the work should have a minimum level of creativity. If a given work does not satisfy this test, it would be seen as infringing material.
When works like fan fiction are subjected to such legal tests, they are often found to be infringing.
Wattpad, one of the largest growing platforms to read and write fanfiction, defines it as “For all intents and purposes fanfiction, is any fan-produced writing that uses, remixes, or subverts existing fictional stories, worlds or characters to create unique stories. It fulfils a social and emotional need for self-expression (and wish-fulfilment). It also forms a community around interests and passions, simultaneously being driven by relationships and driving new ones.”
Also read: 12 Powerful Books Written By Women Writers In 2020
Statistics show that 90% of the time, women are creators of these works. These works can be written over a longer period of time; they are basically a re-imagination and reinstatement of the story that has already been told and can be written anonymously. Women generally have to cater to their family responsibilities, and a lot of times, they are not confident to reveal their identity and be vocal about their desires. Thus, their time and resource constraints at most allow them to write fan fiction instead of other literary works. But these works are considered derivative and unimaginative and are thus, not granted protection under copyright law and are rather considered to be infringing material. The situation is even more challenging for trans women.
These examples show that women are disadvantaged due to the present copyright regime, regardless of whether they are consumers or creators of such workers. It is important for the policymakers to ask the women question and overhaul the present copyright regime, which is skewed in favour of men. At a structural level, there is a need to bridge the digital divide between men and women. There is a need to shift from copyright to copyleft, wherein the authors get to share their knowledge freely with everyone else, who can also utilise, modify and share it with others. This will facilitate the spread of knowledge amongst those who have always been excluded.
Also read: 8 Memorable Books Authored By Women In 2021
Featured image source: The Paris Review