[Guest Book Review] A Feminist Reconstruction of Intellectual Property Laws in Music

The IPKat has received and is pleased to host the review of “A Feminist Reconstruction of Intellectual Property Laws in Music” written by Metka Potočnik. This book review has been prepared by Katfriend Zoya Yasmine (University of Oxford). Here is what Zoya writes:

Globally, our steps towards equity for women and gender-diverse people have been unstable and fragile, despite appearances of change. In 2024, the UK Women and Equalities Committee’s inquiry into misogyny in the music industry confirmed a “boy’s club” culture where sexual violence, gendered pay gaps, and bullying are ingrained cultural norms. The Committee’s inquiry focuses on the legal structures that subject women to these inequalities and abuses of power, including discrimination law, employment law, and the law of confidentiality. 

Metka Potočnik’s A Feminist Reconstruction of Intellectual Property Laws in Music exposes the Committee’s blind spot to the gendered IP-driven foundations of UK music. Potočnik’s book strikes at the heart of the music industry and culture, arguing that equity cannot arise from building protections on top of the same IP laws that assert power and control over music-makers and their social conditions. Building upon critiques of existing IP laws and their application in the music industry, Potočnik provides readers with the tools, methods and evidence basis to begin a feminist reconstruction of IP in music using the Feminist Intellectual Property Studies (FIPS) Framework. The book maintains an appropriate balance of critique and reconstruction, while also fusing doctrinal analysis, qualitative research, and interdisciplinary insights.

Potočnik’s approach to writing and researching the book has also been done with clear thought and self-awareness to the topic it is addressing: the writing style is clear and structured, which makes the book accessible to readers outside legal academia; it is written in the first person and incorporates a positionality statement to acknowledge the inherent value-ladenness of (legal) knowledge; the critiques of IP prioritise the lived experiences of music-makers; and finally, the literature cited in the book recognise and prioritise the contributions of women and gender-diverse individuals.

A closer look at the book

The first two chapters are largely introductory. Chapter 1 sets the scene, providing evidence of misogyny in the music industry, from the live music sector to the radio and charts, as well as classical music. Chapter 2 offers an introduction to the FIPS Framework and situates the book within existing scholarship on IP, feminism, and social justice. Against this background, the book has two major aims and the rest of the chapters are set out accordingly: (i) to offer a feminist critique of IP laws in music informed by the FIPS Framework and Potočnik’s qualitative research with women and gender-diverse people in music (Chapters 3-6) and (ii) to offer feminist reconstructions of IP laws in music (Chapters 7-8). Below, I explore these substantive chapters in more depth.

Chapter 3 argues that copyright’s subject matter in music is gendered. Copyright law’s fixation on musical works as objects (‘works’) focuses on commercially exploiting music and its creators, which undermines the plurality of (non-commercial) reasons that women and gender-diverse individuals write songs and the transformative power of music-making as a human activity – the ‘humanity of music’ argument is interesting to read for those exploring AI-authorship.

Chapter 4 analyses the originality threshold in copyright and argues that the concept of ‘intellectual expression’ unduly rewards commercial expression, failing to recognise the full spectrum of creative contributions by women and gender-diverse people making music. For instance, human connection, emotional or non-commercial expressions are not valued in copyright law or are denied by powerful entities in the music industry, resulting in a ‘gender credit gap’.

Chapter 5 focuses on the exploitation of economic rights in copyright contracts and the role of collective management organisations. Potočnik’s analysis reveals how musical contracts not only assert control over musical works, but also over authors themselves. One example presented is the inevitability of ‘copyright buy-outs’ in standard contracts, which assign ownership to producers with no obligation or commitment to exploit songs, meaning that musicians are alienated from their music while also suffering a loss of revenue.

Chapter 6 includes analyses of moral rights and performers’ rights alongside an investigation into how music makers’ images are commercially exploited by trade marks and the tort of passing off. One example presented by Potočnik concerns the right to attribution and the right to object to false attribution, which fail to protect authors who are misgendered. Potočnik shows how these rights and other legal standards in IP leave women and gender-diverse individuals unprotected from the use of their work and image in ways that harm their identities, dignity, and personal interests.

The final two chapters offer Potočnik’s own beginnings of a feminist reconstruction of IP law in music. She proposes that the categories of ‘original work’, ‘sound recordings’ and ‘performances’ are deleted from the law and replaced with the FIPS Model. This model emerges from the premise that music is a relationship-based and process-oriented human activity. ‘Songwriting-As-Method’ (SAM) is also introduced as a feminist methodology to begin the collaborative reconstruction of IP laws in music.

Final thoughts

A Feminist Reconstruction of Intellectual Property Laws in Music examines the gendered foundations of the UK music industry through the lens of IP law, adopting Potočnik’s own FIPS Framework. The book not only offers doctrinal analysis, but also the methodology (SAM) and critique for researchers, policymakers, and activists to reconstruct IP laws in music alongside music-makers.

This book offers a comprehensive feminist critique and the beginnings of a reconstruction of IP laws in music. It appeals not only to IP academics, but the end chapters offer ways that IP can operate more equitably (e.g., the FIPS Contract Model, FIPS Music Model, FIPS Feminist Gaze), which are directed at policymakers, legislators, as well as those in IP practice who can make changes to the ways that they advise musicians and negotiate IP clauses in commercial contracts.

By way of improvement, while Chapter 1 evidences the gendered outcomes in the creative/music industry, the structure could be changed so that this descriptive component is briefer or embedded within the relevant introductory sections within Chapters 3-6. That way, the book could start with an introduction to FIPS and unpack ideas that are central to Potočnik’s subsequent arguments upfront – for instance, what does it mean for music to be a relationship-based, process-oriented human activity, what exactly is non-commercial music, and what is the meaning of the FIPS ‘Feminist Gaze’? As a comment on the jurisdictional focus, the book’s emphasis on UK law is welcomed, but readers looking for a more in-depth feminist reconstruction of the IP treaties or international laws will not find it in this book.

Music-makers reading this book may find solidarity or validation in the information and experiences shared in the interviews with women and gender-diverse individuals in music. But it might also be hard to read the lived experiences of musicians subjected to sexual violence and controlled by powerful entities in the music industry. Potočnik’s contribution requires us, as IP scholars and practitioners, to look inward and acknowledge how IP concepts and practices that we teach, participate in, write about, and confront regularly are gendered and cause harm. Though Potočnik is careful not to ascribe responsibility to individuals to solve structural injustices and instead urges the government and entities like the WIPO to adopt FIPS findings and approaches, the book prompts readers to think more carefully about how we think about and apply powerful IP laws.

Details

Publisher: Edward Elgar, 2025

Extent: 248 pages

Format: Hardback and e-book

ISBN: 978 1 03531 981 7