Rebecca De Sanctis
JD Candidate, 2019
“We are all equal, but some of us are more equal than others…” – George Orwell, Animal Farm.
Orwellian politics can be used to understand the intersections between intellectual property, copyright protections, ‘copyleft’ counter cultures, and feminism in Canada. In theory, the ‘copyleft’ movement emerged as an inclusive anti-capitalist alternative to copyright protections; however, in practice the copyleft movement continues to perpetuate gendered constructs and hierarchies. Thus, although feminist ideologies theoretically intersect with the philosophy behind open access software, the two diverge in practice.
Copyright provides the owner of a work an exclusive right to copy their material, a right to publish for the first time, and a right to perform. Thus, copyright protections protect an owner’s moral and economic rights in regards to the work in question. Although there are benefits to copyright protections, such as recognition and monetary incentives, copyright protections have also been criticized for perpetuating power structures within the real world and in cyberspace.
Open access software and hacking have emerged as two counter cultures that seek to defy and destroy the established power structures maintained by copyright. Academics such as professors Carys Craig and Sophie Toupin have argued that the philosophy behind these two counter cultures is in line with feminism. Ideologically, all three structures are equalitarian in nature, and maintain the view that knowledge and participation are quintessential to power. Furthermore, hackers, feminists, and geeks all contribute to an online recursive public based on the notion of openness. This concept of openness (expressed through free software, creative commons licencing agreements, or hacking), values freedom of expression and speech over intellectual property law constructs. For example, hackers view hacking as “an arms race between those with knowledge and power to erect boundaries and those with equal power, knowledge and desire to unarm them.” Thus, in the name of social liberalism and utilitarianism, hackers, feminists, and geeks are trying to break down the walls set up by copyright protections in order to make knowledge more accessible.
However, not all walls are broken down equally. A disparity arises between the theory and practice of openness in a recursive public. Despite the all-inclusive rhetoric of openness in hacking and the ‘copyleft,’ such practices often exclude, marginalize, or act to the detriment of “women, queers, and people of colour.” In response, women, members of the LGBTQ community, non-gender binary individuals, and people of colour are forming their own hacker spaces, such as Femhack, where they can learn about hacking practices, and discuss issues of ownership and accessibility.
Whereas ‘fem-hackers’ are able to skirt the perpetuation of power structures reflective of the patriarchy by creating their own physical spaces to hack, women who engage in the ‘copyleft’ through creative commons licencing have a harder time creating similar space. In considering the shortcomings of open access publishing through a gendered lens, Craig draws on Sevigny Desolier’s analysis that women’s labour is de facto valued less within society. Craig postulates that if academic journals using copyright protections are seen as prestigious, then women scholars who publish via a creative commons license may be devaluing their work, playing into the trope that women are expected to work for free. Craig’s study is an interesting inquiry into the junction between anti-capitalist counter cultures (such as the ‘copyleft’ movement), equalitarianism, and gender.
In the “tyranny of structurelessness,” Jo Freeman argues that “the lack of formal structures deployed by a group or in space ends up favouring those who already enjoy gender, class, and race privilege, ultimately reinforcing the informal power of certain individuals or cliques.” Freeman’s critique of ‘structurelessness’ has been reiterated by hacktivists and academics to criticize the double standard of ‘openness’ that surrounds mainstream hacking movements and aspects of the ‘copyleft’ movement. However, we should remember that the open access movement is dynamic, and as it continues to grow and restructure itself there is still hope that by breaking down one wall in the name of accessibility we can shatter the online glass ceiling before it becomes concrete.
 E Gabriella Coleman and Alex Golub, “Hacker Practice: Moral Genres and the Cultural Articulation of Liberalism” (2006) 8:3 Anthropological Theory 255, <online: steinhardt.nyu.edu/scmsAdmin/uploads/003/679/255.pdf>.
 Carys Craig, (Shirley Greenberg Lecture delivered at the Faculty of Law, University of Ottawa, 2016), online: <drive.google.com/file/d/0Bz6soJjrQQtkRVFHN3ltMlkxdjQ/view>; Sophie Toupin, “Feminist Hacker Spaces: The Synthesis of Feminist and Hacker Cultures” (2014) 5 J Peer Production, online: <peerproduction.net/issues/issue-5-shared-machine-shops/peer-reviewed-articles/feminist-hackerspaces-the-synthesis-of-feminist-and-hacker-cultures/>.
 Christopher Kelty, “Geeks, Social Imaginaries, and Recursive Publics” (2005) 20:2 Cultural Anthropology 185.
 Supra note 1 at 263.
 Toupin, supra note 2.
 “Femhack”, online: <htmlles.net/en/participant-e-s/femhack/>.
 Craig, supra note 2.
 Joe Freeman, “The Tyranny of Structurelessness”, online:<struggle.ws/pdfs/tyranny.pdf>.