by Charlene Musiza and Desmond Oriakhogba

It is no news that 26 April every year is established as World intellectual property (IP) day. According to the global IP law and policy making body – the World Intellectual Property Organization (WIPO), the day is set aside to celebrate and learn how IP rights (including copyright, patents, industrial design and trademarks) contribute to creativity and innovation.

Perhaps, what is news, and a cheering one at that, is that this year’s World IP day, according to WIPO, will be celebrating the ‘brilliance, ingenuity, curiosity and courage of the women who are driving change in our world and shaping our common future’. In this regard, the day will afford the global IP community an opportunity to “highlight how the IP system can support innovative and creative women (and indeed everyone) in their quest to bring their amazing ideas to market” and “reflect on ways to ensure that increasing numbers of women and girls across the globe engage in innovation and creativity, and why this is so important”. This is cheering for several reasons.

First, being an institution renowned globally for ground breaking research that leads to and supports innovation and creativity, the celebration will remind the University of Cape Town (UCT) of the many women researchers leading and contributing to innovation and creativity going on within its domain and goad it to further support and promote their innovative and creative endeavours.

Second and very importantly, the focus of this year’s World IP day aligns with the focus of the research and works undertaken by the IP Unit (domiciled in the Law Faculty) through the Open African Innovation Research(Open AIR) network. Essentially, Open AIR is seeking to resolve the following overarching research questions:

• How can open collaborative innovation help businesses scale up and seize the new opportunities of a global knowledge economy?
• Which IP policies will ensure the social and economic benefits of innovation are shared inclusively?

Open AIR strives to answer these questions through evidence-based research structured on the pillars of its key themes of informal sector innovation, high technology, indigenous and local entrepreneurs, and metrics, law and policy. While Open AIR’s research are of global relevance, its primary focus is Africa and the lessons to be learnt from African innovation by the rest of the world. And crucially, it seeks to answer its overarching questions increasingly through the lens of gender equality and empowerment of women and girls.

Third, the celebration brings the gender aspect into IP. It is recognised that a huge gender gap exists in the IP system. To enjoy IP rights, an innovative or creative work must meet certain requirements. For instance, under patent regimes, an invention must meet a number of patentability requirements to be registered such as newness, usefulness and non-obviousness. Similarly, under copyright regimes, although registration is not required, a creative work (book, film, painting, etc) must satisfy the requirements of originality (and fixation), and authorship (and ownership) for the creator to enjoy copyright.

Though the IP system is considered to generally reward and incentivise creativity and innovation, it is curious that fewer women are using the system. The issue is not that innovative and creative women are lacking. In fact, it is common knowledge that women have made their mark in the fields of science, technology, engineering, business, mathematics, fashion, arts, music, films, among others. However, the concern is that women do not seem to utilise IP systems as well as their male counterparts despite their innovative and creative exploits. For instance, studies evince that women inventors comprised less than one third of international patent application filed in 2015 and that the patents obtained by them is by far less than those of their male counterparts. In the creative industry, women make up only 7% of movie directors and 20% of screenwriters globallyand their artworks generate far less auction compared to those of their men counterparts.

Trying to understanding the lack of female participation is not an easy task because of the many issues at play, but a WIPO group of expertsidentified two major obstacles; first, general gender inequality and, second, issues that relate specifically to the IP system. According to WIPO, the widespread gender inequality reflects, for instance, in “far fewer girls than boys studying scientific, technical, engineering and medical (STEM) subjects” and is also expressed in “prejudices, preconceptions and stereotypes” which sees “women as being limited to certain traditional roles rather than potential leaders” in STEM and arts. This is exacerbated by the “inflexible economic and social structures which can restrict women’s career prospects”. With regard to the IP system itself, some IP rights may pose very strong barriers to women. WIPO noted that“developing some types of IP, especially patents, may involve significant financial commitment, and there is an argument that women prioritize the stability of their family income, making them more risk averse than men”. Further, in a world were patents tend to be one of the key indicators for measuring innovation, women then become even less visible as their participation is significantly limited.

The above is just one leg of the gender dimension in IP. The other leg is influenced by feminist theories. The argument is that, though  the IP system appears gender neutral, there is an inherent gender biasas it actually promotes masculine concepts of authorship, ownership, and individualism. These concepts are alien to and not in sync with most of the creative and innovative endeavours of women (women’s work), which are undertaken in open and collaborative communities and often out of the need to burn-out the rigours of domestic life and without the need to claim authorship and/or ownership. Such works include food recipes, basket weaving, bead making, quilting, knitting, etc. The works do not fit into the global IP system since they may not always meet the strict requirements for IP rights already highlighted above. It is even worse, when these works are informed and shaped by traditional knowledge (TK) because TK, which exhibits creativity and innovation, does not yet enjoy adequate protection under the global IP systems and is often not considered IP.

Therefore, the global IP system, surprisingly, seems to run contrary to the imperatives of gender equality. Gender equality involves the right to equal opportunities between men and women including equal access to and control of social, economic and political resources. It is recognised as a fundamental human right under several international instruments such as the Convention on the Elimination of all Forms of Discrimination against Women 1979 and Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003. Gender equality isessential to achieving sustainable development, poverty reduction and good governance. Thus, it is not just a specific goal, it also permeates other goals, under the United Nations’ Sustainable Development Agenda (SDA). The gender equality discourse includes economic empowerment of all gender, especially women, and how to make them change agents that can drive the process of development.

Therefore, from a gender equality perspective, the overall concerns are how to close the gender gap in the IP system and, equally important, how to recognise and value the creative and innovative capabilities of women. In the context of indigenous and local businesses driven by women innovation and creativity, the concerns are how to scale up and to take advantage of new opportunities of the global knowledge economy and how best to shape IP policies to ensure that women receive a share from the social and economic benefits of innovation and creativity just like their male counterparts. This requires understanding the barriers to female participation in socio-economic life.

The distinction in human creative endeavour established by the different IP rights creates a hierarchy of creative and innovative activities, which functions largely against the works produced by women. The value placed on patents versus the value placed on other IP rights reinforces unequal recognition of female creative endeavours. In light of the acknowledgment by WIPO of the skewed nature of participation in the IP system, it is incumbent upon our institutions; government, academia, industry, to not only improve efforts towards female empowerment but facilitate female participation in the IP system. It is imperative to remove social, economic and political barriers and create an environment that not only allows female creativity and innovation to thrive but equally recognises and values female creativity and innovation.