What challenges do women face in protecting intellectual property rights?

Neutral intellectual property laws overlook gendered hierarchies that prevent women from claiming ownership of their work

Updated - June 02, 2023 04:49 pm IST

Published - June 02, 2023 03:49 pm IST

Image for representational purpose only.

Image for representational purpose only. | Photo Credit: Reuters

In the 1940s, Hedy Lamarr made smartphones possible. The American inventor (and famed Hollywood actor) developed a frequency-hopping technology that would one day spawn wireless communication tech in the form of Bluetooth, GPS and Wi-Fi. Still, Lamarr didn’t receive credit for her invention for decades. Never in her lifetime did she earn money for a technology she pioneered.

The World Intellectual Property Day, observed on April 26, was this year dedicated to women like Lamarr. Supreme Court judge Justice Hima Kohli in a public address spoke about the challenges women inventors, authors and creators face in entering innovative fields and sustaining themselves. Gender plays a role in who claims and exercises intellectual property — which exists in the market as patents, copyrights and trademarks. Data shows very few women are participating in the intellectual property system; and subsequently, very few women are benefitting from it.

Here we look at the depth of the gender gap within the intellectual property ecosystem, and why laws need to be revaluated using an intersectional lens.

What are intellectual property rights?
Intellectual property can include entrepreneurial ideas; creations and inventions in Science, Technology, Engineering and Maths (STEM) fields; artistic and literary works. Key forms of intellectual property protection include patents, trademarks, copyrights and trade secrets.
As an asset, IP can be bought, sold, licensed or given away. IP laws govern these transactions, ensuring that a creator is compensated, their work can’t be infringed upon, and creative work cannot be reproduced without the creator’s permission.
IP rights are enshrined in Article 27 of the Universal Declaration of Human Rights of 1948, which states “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

The IP gender gap

Ideas are like property. Imagine Person A builds a three-story house on a sprawling land; they put in the physical, intellectual and emotional labour of designing, mapping, planning and constructing a sound structure out of nothing. Imagine, then, if they don’t get to live in it. Person A is unable to register the house under their name so technically it is never theirs; someone else comes along and claims ownership, eventually converting it into a rental property that promises a steady revenue stream.

The most tangible metric for the IP gender gap is measuring women’s patenting activity — how they file patent applications under the Patent Cooperation Treaty (PCT). In India, the “share” of female inventors who file patent applications between 2019-2021 was 10.2%. As of 2023, women globally account for 16.2% of all inventors, with men making up the remaining 83.8%.

Globally, the share of women inventors across STEM and business fields have grown over the last decade, but WIPO noted that “growth is slow and inequalities persist”.

Parity may only be achieved by 2061 — 38 years from now.

“This means women inventors and innovators today may never experience equality and representation in their careers.”WIPO

A 2019 report summarised that “although women account for roughly half of the global labour force and more than half of college graduates worldwide, they receive far fewer patents than men”. Take the example of Catherine Greene who along with her associate Eli Whitney invented the cotton engine, a machine that separates cotton from its seeds and is considered revolutionary technology in cotton production. Despite the collaboration, the patent was granted to Whitney in 1794.

An analysis of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement — which requires all international member states to make patents available in all fields of technology — found the adverse impact of neutral measures on women. For instance, women farmers who desired to patent a process would not be able to keep seeds of their crops under the regulations, restricting their economic livelihood. Frameworks such as TRIPS “bounded definitions of what counts as knowledge” and denied “the role of millions of women in the production of knowledge over time”.

Barriers to entry

Cultural bias and prevailing gender norms present as the most fundamental challenge, where young girls are discouraged from pursuing STEM or business career graphs. A 2021 study published in PNASfound children — as early as six years old — started developing ideas that STEM courses are fitter for boys than girls, which eventually affected girls’ and women’s sense of belonging in these fields. Fewer women enter the field; those who do may not receive adequate support, opportunities and guidance, which hampers their confidence; and wage disparity disincentivises careers, leading to a scenario where men dominate these fields.

In non-STEM fields such as writing or craft creation, scholars have argued that the legal nature of IP protection was never designed to assign value to women writers’ and creators’ works. Handicrafts such as knitting or embroidery, for instance, were not considered to be marketable because a) they were produced within the domestic sphere and b) they didn’t meet the “originality” requirement under the law for they were “functional” pursuits rather than artistic ones. The legal definition of “authorship” and invention are masculine in nature, legal expert Kara Swanson has argued, adding that IP laws perpetuate power hierarchies based on gender and heteronormativity.

In copyright-based creative industries, a U.S.-based assessment concluded that while women’s participation is growing in certain fields, their registration of “authorship” is substantially smaller. There is limited data on literary and musical works in the Indian context on copyright applications filed by women or people from marginalised communities, which list names, occupations and social backgrounds. 

The small subset of people who do enter creative and innovative fields find workplace discrimination as a refrain. It’s called the “leaky pipeline phenomenon”, where gendered institutional policies and implicit bias — such as the motherhood penalty, where they face disadvantages in pay, benefits and perceived competence — result in poor retention of women creators.

The many layers intersect: inventors may lose out on credit and incentives as their work is neglected. Pioneering American ceramic painter Mary Louise McLaughlin invented the under-glaze technique in 1877 of painting, but it was later patented by a man. . A 2005 study sampling science and engineering faculty found women are less likely to even disclose their inventions, much less file patent applications. Sources of funding, or other ways to commercialise, have been historically restricted too. Even in creative fields and disciplines where more women participate than men (writing, for instance), commercially valuable copyrightable work mostly came from male authors due to discrimination.

Patent and trademark registration are also legally and financially tedious processes, requiring awareness and resources. Women-owned businesses, for instance, are micro- and macro-enterprises, where entrepreneurs may not have the necessary capital to pursue trademark registration and/or access banking facilities. On average, an approximate cost for filing a patent application are ₹1,600 for an individual or between ₹4000-₹8000 for entities; attorney fees can range between ₹20,000 to ₹35,000. Others may find the process time-consuming and complicated, and without support, may forego the process altogether. A coalition of women in academic research, who are mothers, recently called for an equity fund. They argued for funding agencies to be equitable in how their schemes are organised and who has access to them.

Lack of mentorship plays a role too: “You need a mentor to help you think about patenting and how to write patentable papers,” Sreeja Arunkumar, an engineer who has developed car applications that work with smartphones, once said in an interview. There is evidence to show women in engineering or other STEM fields were more likely to sustain themselves in the profession and feel a sense of belonging if they had mentorship.

The knowledge gap goes much deeper, where inventors and creators may not be versed with the concept of intellectual property in itself, unaware of their rights, and how to manage, transfer and enforce such rights to protect and monetise on their work. Justice Kohli in her speech also listed an additional barrier: “Women also face additional barriers when seeking legal assistance such as cultural, linguistic and geographical barriers, which can make it difficult for them to access the support that they need.”

Are intellectual property rights linked to empowerment?

The dome of protection IP rights offer is not limited to the individual. Experts highlight a correlation between a robust IP regime, gender equity and economic growth. When women own IP rights, they are able to secure financing, commercialise and negotiate access to IP, draw in investors and funders, signal their innovation; there is increased pay and better professional opportunities. The protection further empowers them to participate in the politics of their community and country, experts note.

Different economic rights metrics indicate that women in countries which protect property rights tend to have improved access to land, credit and equal inheritance rights. A U.S. based study estimates that closing the patenting gender gap could increase the GDP by 2.7%.

“[I]nclusion in the production of innovation supports entry, social mobility and the design of products that address the problems faced by a diverse set of consumers.”Colleen V. Chien, in “The Inequalities of Innovation” (April 2018)Legal scholar

Conversely, a vacuum of IP laws can worsen the living conditions for women. More so in middle- and low-income countries where women’s unemployment and access to education are dismal. When creative works can be reproduced without permission, sold without compensating or crediting the creator, or legal requirements exist as a maze, fewer women become financially independent.

Culturally, a weak IP regime means a huge pool of inventors, authors and creators is left untapped; discoveries that may benefit communities and countries may thus never happen. Think seatbelts: when testing car seat belts and airbags, researchers used test dummies that resembled the average male anatomy. Studies over the years have shown a higher rate of fatalities among seat belted-women beause these creations were never designed for them.

What safeguards are needed to protect rights?

In the latest International Intellectual Property Index, published by the U.S. Chamber of Commerce, India’s rank fell from 20 in 2014 to 42 in 2023. The report evaluates the protection of IP rights for 55 countries, factoring in copyright laws, patent laws, the ability to monetise assets and international agreements.

In 2016, India released the National Intellectual Property Rights Policy which proposed ways to reduce waiting time for patent and trademark applications and increase administrative capacities at IP offices. Records show women filed 7,698 patent applications at the India Patent Office in 2022.An official at the Ministry of Commerce and Industry said this was a four-fold increase in applications filed by women over the years, attributing it to government initiatives that incentivise innovators and entrepreneurs.

Experts advocate for legal measures, such as reforms that make the patent system and creative domains more accessible and affordable to women and people from marginalised locations.  India adopted the National Intellectual Property Rights Policy in 2016, with one of the objectives being “encouraging and supporting capacity building among Women Creators, Innovators, Entrepreneurs, Practitioners, Teachers and Trainers”. Per India’s Patent (Amendment) Rules, 2019, women’s and small businesses’ patent applications can be expedited within the system. WIPO’s “gender action plan” argues for governments to integrate a gender perspective into IP legislation, policies, programs, and projects. Increasing the technical and financial know-how among underrepresented and under-sourced inventors could help level the inventing playing field.

These may include educating creators and researchers about patent or copyright processes, and offering fee reductions and free legal aid to creators. India offers an 80% fee reduction to start-ups and women entrepreneurs.

Addressing gender inequality and discrimination in creative and STEM fields is a cultural battle. IP rights and innovation are best protected when a country promises access to continued education and works to improve different measures of gender parity, experts argue. A proposed toolkit by technology transfer professionals nonprofit and IPO member companies suggests institutions identify their individual biases and create affinity programs where female engineering groups or LGBTQ+ software groups cultivate space to raise questions and find mentors.

Justice Kohli remarked: “Addressing the biases and stereotypes that often hold women back in the field of intellectual property, will help create a robust ecosystem...They can fully participate in the development of our society, fostering creativity, innovation and competition.”

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