Women and IP: Finding the Elusive Balance in Intellectual Property

Women and IP: Finding the Elusive Balance in Intellectual Property

Amanda Carpenter is a JD Student at Osgoode Hall Law School and Katrina Leung is a JD Student at Queen’s University.

On 6 November 2009, IP Osgoode and the Institute for Feminist Legal Studies jointly organized the second annual Women and IP Roundtable. Gowlings Lafleur Henderson LLP hosted the event at their downtown Toronto office. Speakers were organized into three panels: Private Practice, Industry and Government, and Gender Issues in Intellectual Property. The event featured presentations by scholars researching gender and intellectual property issues. Speakers were also invited from various areas of IP practice to reflect on the opportunities and challenges in the field and in the practice of law and policy-making. The focus of the discussions was whether women in IP faced greater barriers than women in the practice of law generally. You can find coverage of the first annual women and IP roundtable by Anna Shahid by clicking here.

The event was co-chaired by Professor Giuseppina D’Agostino and Professor Mary Jane Mossman (both of Osgoode Hall Law School).  This year the roundtable presenters consisted of, Professor Fiona Kay (Sociology Department, Queen’s University), Ariadni Athanassiadis (MBM LLP), Heather Lawrence (Member of Chambers of Michael Silverleaf QC), Virginia Jones (Canadian Motion Picture Distributors Association), Barbara Motzney (Department of Canadian Heritage), Professor Carys Craig (Osgoode Hall Law School), Professor Bita Amani (Faculty of Law, Queen’s University), Professor Laura Murray (English Department, Queen’s University), and Professor David Vaver (Osgoode Hall Law School).


Fiona Kay, a sociology professor at Queen’s University, delivered the keynote address. Widely recognized for publishing extensively on issues surrounding gender and the legal profession, she notes that although trends suggest that gender imbalance is becoming less apparent, it would be wrong to say that the issue has been remedied entirely. She offers some sobering statistics on females in the legal profession citing the proverbial glass-ceiling. While female law students constitute close to if not more than 50% of law school enrolment numbers, women are more likely to be found in less money-making and less prestigious legal settings than men. Several perspectives exist to explain these numbers and are broadly classified into resource (supply-side) factors and demand-side factors. The supply factors include the persistent gender stereotypes held by employers; that women possess less ‘cognitive traits.’ Consequently women are often not granted the same presumption of competence. Also, because women often bear family and household responsibilities, they are unable to put in the long hours that men can and are often relegated to the ‘mommy-track’. The demand-side factors are commonly explained by cultural reasons: networking and client contact is a more important consideration for hiring, retaining and promoting male candidates (conversely, academic performance is a more important variable for female candidates).

She also cited that 9% of women would leave private practice within 16 months and 55% would leave within 4.5 years. “Flight from law” is a notable issue and she states that while alternative work schedules exist, these arrangements are far from being institutional policy. Flexibility is advocated by the various Bar Associations but it is still largely up to the individual to seek alternative arrangements from employers. Professor Kay did offer some encouraging findings however. She states that women are more often satisfied with the practice of law itself than their male counterparts and that while barriers persist, so do growing enhancements of gender equality in the profession.

Panel One

In the first panel, two practitioners in private practice shared their personal experiences working in intellectual property. Their experiences in some measure mirror the findings of the keynote speaker. A partner at MBM LLP in Ottawa, Ariadni Athanassiadis cites that once women hit forty they disappear from the practice of law. However, she emphasizes the strength of having female and male colleagues on her team and how client-interactions can be enhanced by having both genders represented. She also takes note of her firm’s clear articulation that women are an asset and further states that lawyers who are working mothers are among the most efficient she knows, and are appreciated as such.

Heather Lawrence, a barrister with the Chambers of Michael Silverleaf QC in London England, brought a unique perspective on gender imbalance in the context of a predominantly male judiciary. She cites that it is not uncommon for female counsel to be treated with hostility. She suggests that gender imbalance in the intellectual property world is not likely to be any more pervasive than the legal world generally, and lists three broad factors relating to how people choose an IP lawyer: 1. Someone you think will do a good job, 2. Someone you think the client will be impressed by, and 3. Someone you will enjoy working with. As these criterions are value judgements, there is the potential for bias and gender issues. She recalls that witnesses are often relieved to see her step up to the bench on cross-examinations because of her gender and she supposes that the perception of lawyers and clients likely mirror that of witnesses. Heather Lawrence remains optimistic however and believes that cultural and attitude changes are key. She further believes that the Bar is best positioned to initiate these changes.

Panel Two

Both speakers in the next panel, with successful careers in the industry and government, were impressed that there was a strong female presence in all the legal counsel positions they had interactions with. Virginia Jones, Director of Policy and Legal Affairs at the Canadian Motion Picture Distributors Association, stated that it is unsettling if she does not see her female peers – she also recognizes that when external legal counsel is sought, it should be the responsibility of women working in-house to seek a gender-balanced team. She also questions the requirement for some IP practitioners to have a scientific background, suggesting that having an advanced degree may instead impede one’s ability to translate complex science into simpler, more digestible material for a deciding judge to understand in court.

Barbara Motzney, Director General with the Department of Canadian Heritage, emphasizes that working in IP and policy requires a multidisciplinary team. She also states that the government’s commitment to gender issues is defined in the Charter and directed further by various Federal Action Plans and international agreements. Barbara Motzney also emphasises the importance of communication. As a non-lawyer working with lawyers, she notes how important it is to deliver plain, easy-to-understand and quickly communicable documents.

Panel Three

The final panel discussed academic gender issues in intellectual property.  One slide in particular elaborates on the double glass-ceiling:

If science is culture- that culture is male,

Where law is artefact, it too is of a primarily male dominated culture,

Women are demoted in the story of creation.

Law Professor at Queen’s University, Bita Amani detailed her work on traditional knowledge and how IP has an alienating affect on the kinds of content it attaches exclusivity to. More specifically she states that because non-narrative knowledge such as folklore or traditional knowledge is treated as public domain, it is held to be not deserving of protection. She also discusses the role of universities and challenges how academics focus on black letter law sometimes to the detriment of exploring “fringe” topics and engaging students in a critical manner. She elaborates that cultural studies help us analyse IP in a multidisciplinary way; rather than solely relying on economic rationales such as the utilitarian view that patents encourage disclosure and defeat the free-rider effect.

English Professor at Queen’s University, Laura Murray, discussed her recent experience with the Facebook Page called Fair Copyright for Canada, where she discovered that women are underrepresented in the dialogue on copyright reform in Canada. She discovered that although 34% of IP academics in Canada are women, only 11 % of the discussion posts were from women. During her presentation, she highlighted the masculine and generational tones to copyright movements today: whether it is on the Facebook discussion websites or the well-publicized documentary on copyright and remix culture “Rip, A Remix Manifesto”. Further, Laura Murray asks us to consider how laws are experienced by artists, patrons and the public and how that is distinctly different from the conversation that legal minds engage in.

In Conclusion

Osgoode Professor David Vaver made some closing remarks, recounting a recent story of how a woman’s application for professorship was not considered because she couldn’t attend the interview due to her being in an advanced state of pregnancy. The university denied her an alternative interview via conference call. She eventually launched a Human Rights Complaint.  Professor Mary Jane Mossman finished the event by stressing that while some things have changed, not everything has changed at the same pace - in particular, sex segregation in the legal profession and IP. A point emphasized during the event is that only 18% of partners in general practice are women whereas 45% of associates are women. It is suggested that the gender issue in IP is further exacerbated, due in large part to the requirement of having a science or engineering background (largely male-dominated academic fields) to practice in fields such as patents.  Professor Mossman believes that getting a group of like-minded people together to engage in dialogue and helping them realize that they are not alone can be used to stimulate change.

While many statistics suggest that we are only at the very beginning of addressing these challenges, strides are being made and we feel that events such as the roundtable is evidence of that progress! Reflecting on the day’s events, a few themes were highlighted. First is the idea of communication and the need to address the disconnect between how scientists, lawyers, policy-makers and laypersons understand and interpret IP issues and the law. The second is the role of universities in shaping how legal minds understand IP. It was suggested by one of the panelists that the models and perspectives endorsed in law schools are perpetuated in legal practice and beyond. Third is the importance of a forum for debate to ensure knowledge is shared and multidisciplinary perspectives are expressed. A caveat to this last point: Laura Murray stressed in her presentation that the tone of the debate is a critical concern. For example, a generational tone can be a strength but it can also be a limitation where the dialogue takes on a sexist, ageist or culturally-biased quality and in effect excludes some groups from participating.