Celebrating Women in Innovation and Creativity: An Interview with Dr Hayleigh Bosher
To mark the 2018 World Intellectual Property Day, Dr Hayleigh Bosher talks about her journey to intellectual property (IP), the importance of IP, and her contributions to making women in IP more visible. Hayleigh is the founder of World Intellectual Property Women (www.WIPW.org), a free global network for women working in IP. She is a senior lecturer in Intellectual Property Law, Director of the IP Awareness Network (IPAN), and Visiting Research Fellow at the Centre of Intellectual Property, Policy and Management (CIPPM). Hayleigh is also a regular blogger for the IP Kat.
Q: How did you first get interested in intellectual property?
Before I studied law, I did a National Diploma in Performing Arts -singing, dancing, acting and scriptwriting - which I really enjoyed. But when I got to the end of the course, I wasn’t sure I could pursue it as a career. I then decided to study law at University, because I didn’t know what I wanted to do afterwards. I thought that if I decided to be a lawyer at the end, great. But if not, I would still have a serious degree with other options. In the final year of my degree, I chose IP as an elective. I really enjoyed it compared to the other subjects. Probably because I have a passion for the arts, which IP regulates.
In fact, I won an award for best IP student at Bournemouth. My IP lecturer, Professor Dinusha Mendis -who was later my supervisor asked me if I was interested in doing a PhD. I asked what that was! I didn’t know what a PhD was. I am the first generation in my family to attend university. I don’t have relatives that are lawyers or that have PhDs. But I quite liked the sound of being ‘Dr Bosher.’ I thought, there’s nothing to lose, I will apply for the scholarship and see what happens. I was awarded the Vice-Chancellor’s PhD Scholarship from Bournemouth University in September 2012. Which meant I started my PhD before I’d been to my undergraduate graduation!
It wasn’t that I dreamt of being in IP from a young age or anything, I didn’t know anything about it before the final year of my degree. Even after starting my doctoral research, I wasn’t sure what I was going to do afterwards. Then I started teaching, going to conferences, enjoying research, publishing and all those things involved in academia. I liked it. By the end of my doctoral research, I was hooked!
I had placements and experience in law firms, but I realised that academia better suits my lifestyle and personality, I enjoyed it more than the law firms. Although, with IP, you kind of get a mix of both, because it is a practical subject, it is not all theoretical. There is the theory and I love the theoretical discussions, I am a bit of a philosopher in my mind. At the same time, I really enjoy helping creators and small businesses. Another thing I love about IP, from what I’ve experienced, is that you are better at it if you are a creative problem-solver. Perhaps because I come from a background of performing arts and creativity in myself, I find it easy to relate to the creators and to design innovative solutions.
Q: What type of IP do you specialise in?
My PhD was in copyright law. It was about digital copyright infringement and the internet; how we regulate online as opposed to offline. The basic premise is that I created a framework based on the concept that when you regulate offline, there is one set of facts to consider in Court. Whereas, when you regulate online, there are two sets of facts you can apply the law to. One is the internal perspective, which is the technical functioning of the internet. And the other is the external perspective- the cognitive process of how we understand what we are experiencing online. Since then, building on this, most of my research has focused on copyright infringement and enforcement.
I also look at IP education, for example with IPAN. I am also a member of the European IP Teachers Network, where we talk about pedagogy. That is, thinking about the best way to educate people at different levels about IP. I worked on a project at Bournemouth called the Copyright user (www.copyrightuser.org): a resource for the public and creators on what they need to know about copyrights.
I have also worked on trademarks. I recently became the Deputy Editor of the European Trademark Reports. I teach the whole IP module at University level, so I have to know about all IP and related subject matters. I also do consultancy, so I have to know the broad range of IP subjects to give the clients the best possible help. But ultimately my specialist subject is copyright.
Q: Why are intellectual property rights important?
One could answer that IP rights are important for the economy. But I think that it runs deeper than that. I think that the arts are so important to society because they make people happy and uplift the world. Arts can be used for criticism and accountability. A play can change the way you view the world or yourself. A painting or movie can move you to feel happy or sad. Inventions are equally beneficial for society, for example medicines to help reduce suffering and new technology that helps improve our lives.
IP is so important because creativity and innovation are important to the progress of the world. IP supports creators and inventors. While there are convincing arguments that IP is an incentive for creativity and innovation, I don’t believe that anybody, especially in the creative arts, produces work solely for the money. I do think there is fulfilment in the arts. Nonetheless, IP enables artists to sustain themselves, fund their projects, as well as be rewarded and recognised for their efforts.
For lots of artists and designers I’ve worked with, it is important to be recognised as the creators, because they feel that their creativity is an extension of their personality. I can relate to that, because when I look back at my PhD, I recognise that only I could have written it in that way. It really is a reflection of my personality. I could give you the same questions, research tools, even the same words, but you would express the thesis in a different way. So, I do understand why creators want to be recognised as creators. I think IP in general helps with this. Overall, IP remunerates creators/inventors, allows them to continue to create, it benefits society because in exchange, we get the culture, medicine, technology that makes life easier and advances society.
Q: How can interested female and male inventors/creators learn how to protect their intellectual property?
If you are a creator/inventor, the most important thing to know is that knowledge is power. You have to know about IP. My experience of working with creators over the years, is that they often don’t know until it’s too late. For example, if they have invented something which is patentable, it may be too late to patent it because they have told people about it (destroying the novelty). It’s not unusual because there isn’t enough education on IP for creators, for example when I studied performance arts, I wasn’t taught about copyright or performance rights.
However, now there are a growing number of free resources online: for example, the United Kingdom Intellectual Property Office (UK IPO), World Intellectual Property Organisation (WIPO), Intellectual Property Awareness Network (IPAN), copyrightuser.org, creativeIP.org, the British Library Business and IP Centre offer training courses, to name a few. Creators/inventors should seek out knowledge, they just need to know the basic principles, so that they can make the most out of their creativity or invention, avoid infringement and know when they need to get a lawyer.
Q: Can you tell me about World Intellectual Property Women?
I am aware that there are more men than women who work in IP, shown in statistical research. I have experienced this when I have been to conferences where there are all male panels, or going to IP related meetings and it is noticeable that I am the only, or one of few, women there.
Some people say that there is an imbalance because there are less women who study law, or less women who specialise in IP. But if you look at the statistics in the UK for example, actually more women study law, more women study IP, more women even qualify as solicitors, yet there are less women, particularly when you look at more senior positions. So, there’s definitely a disparity.
WIPW came about when I was editing a written piece, and I noticed that most submissions were from male authors and I wanted to commission some female authors, to get a better gender ratio. But I didn’t know where to find information about women who work in IP, apart from the women I personally knew. There was no information about this online. This was at Christmas time when I happened to be at home, and so I thought- I’ll just start a platform for women in IP and decided to take it upon myself to create WIPW.
WIPW does a couple of things. First, and the main thing it does is that it is a directory of women who work in IP. You can search the directory by areas of expertise, location and job title. So, if you are in the position I was- that you need a female IP author, or a female IP specialist on a panel or female researcher for a research project, you can go to the directory and get in touch with people. What I am doing is really making women who work in IP more visible. I’ve gone to conferences and asked, why there are only male speakers’ here, and they would say I couldn’t find any female speakers. I realised that this is a problem I could solve. So far, it has received positive feedback. We have over 200 women all different positions- judges, professors, legal secretaries, solicitors, attorneys, from all over the world. It’s turned out to be more amazing than I thought. I just did it on a whim because I thought it would be genuinely useful. We didn’t have a speaker bank before, but now we have one. It is about empowering the women who work in IP, rather than just getting numbers. I think women who work in IP need to feel more empowered to speak in panels, be more visible and put themselves out there more, because the issue of gender imbalance also has a psychological ambit. Hopefully, when women in IP become more visible, that would inspire more women to join IP.
Second, WIPW provides a community for women who work in IP. There is a LinkedIn group that connects everyone. A member can get in touch with other women in IP for projects or socialising. It is a safe space to talk about different topics, to encourage and support women. We also advertise events, such as conferences and seminars.
On the WIPW website, there’s also a section called- find your local community. My objective for that part of the website is to make it easier for women to find other women in IP around the world. There are clusters of women in IP around the world. The group is closed because it’s about creating a safe space where women can confide in each other and support each other.
To those who ask why not a directory for both women and men, I say in order to create gender fairness, we need to invest in gender equity first, not necessarily gender equality. The visual explanation I have for this is; if you imagine that there is a short person and a tall person stood next to teach other trying to see over a fence. The tall person sees easily but the short person cannot. Imagine then, that you have two blocks – it would be equality to give one block to each person, but the difference in height would remain the same and the problem is not solved. However, if you gave both blocks to the shorter person, then they can be lifted up to meet with the taller person, so both can see over the fence, which is equity. The ultimate aim is to reach the point of gender fairness; which can require gender equity before we can have gender equality. In IP, we don’t need to make men more visible at this time, as they are already visible.
I’m not taking anything away from the men who work in IP, I am simply choosing to contribute in this way because I relate to it and recognise the need to support women in IP.
Q: Can you share two debates in intellectual property you are interested in and your position on them?
I am writing a paper at the moment on damages and sanctions in online copyright infringement. Recently, it was changed to 10 years maximum sentencing for online copyright infringement, which matches offline infringement. But remember I was saying about my PhD earlier, I don’t believe they are the same. And I am so passionate about this. I am upset about the increase in sanctions to 10 years. I think that it is completely unjustified, because in the case law I have looked at, the judges never gave the maximum sentence before so there didn’t seem to be a need for it.
Moreover, when you look at the process of sending someone to prison, you have to look at the wider economic impact of that. I get the rationale from the industry perspective- they argue that increased sanctions would make people less likely to infringe. My problem with the deterrence theory is that it only works if you know about it. You can only be deterred by something you know about. There is an abundance of research that shows that only a limited number of people know about copyright infringement- what material online is legally useable or not. I cannot tell you the amount of times I’ve been in a room with people who think that everything on google images is free to use. (Obviously, I explain to them that this is not the case!)
The wider impact of that is that people who infringe copyrights online (most likely younger people) could go to prison for 10 years. Financially, the impact of this involves the tax-payer pays for them to be in prison and the defendant not contributing to society during that time. When they come out, they find it difficult to get a job, because they have been in prison, sometimes they’ve lost touch with family and friends. Statistics show that many people in prison are reoffenders – which you can understand if you consider that they have spent 10 years surrounded by criminals and come out of prison to an uncertain and economically challenging life. People who have been incarcerated for a long period of time, often don’t know how to function as members of society once released. You have to think about the wider impact. That also drills down to why we send people to prison. Do we send them because they’ve done something wrong? Purely for punishment? Or for rehabilitation?
The second debate, is the proposal for a press publishers right. There is a proposed directive, Article 11 of the Directive on Copyright in the Digital Single Market. Copyright is about balancing stakeholder perspectives. This includes publishers and record labels, because they disseminate the work. If I write a book, I don’t have a factory to print it or the means to disseminate it, that’s why I would need a publisher - they are very useful in the whole goal of disseminating creativity and knowledge, so I include them in the value of copyright in that sense. And I do believe that granting certain rights helps to make that happen. But equally, we have copyright exceptions and limitations that are narrow at times. The new press publishers rights will give them an extra layer of right on top of what they have, and it would limit what we can do with news. And I think that news is so important for democracy and freedom of speech. Overall, if the proposals go ahead as they are, there could be a negative impact on the news as a whole.
Q: How do you think intellectual property will evolve in the future?
IP is constantly evolving. It is reacting to new technologies and inventions, and should be reacting to society’s behaviours. It is completely malleable and it never stays the same. I really hope that in the future it becomes more ‘household’; better understood by everyone. Not just for creators and innovators, but the general public. When I try to demonstrate the benefits of IP I always use examples like Ed Sheeran and JK Rowlings, because they made all their money and success through exploiting their IP rights. When J. K. Rowling first started writing Harry Potter, was living off benefits and she didn’t have any income. Now she is on the rich list. Almost everybody knows Harry Potter. Even if they haven’t read the book or seen the film, they know what it is, because her work has been disseminated worldwide. You’ve got the films, the games, theme parks, all because of her ideas and her success in copyright protection and licensing. Ed Sheeran has a similar story where he talks about sleeping on friend’s sofas whilst trying to break into the music industry, now he’s a worldwide success. But I’m not sure how many JK Rowling or Ed Sheeran fans, understand that their success is built on the exploitation of intellectual property. So, I’d like to see better education for the general public, as well as creators and innovators. This means education in schools- it needs to be grassroots up.
When I worked on the Copyright user project, I undertook some research on the most frequently asked questions about copyright, so that we could answer them on the website. To do that, I downloaded all of the questions that members of the public had asked about copyright from Yahoo Answers. I coded them and worked out the top 10 most frequently asked questions. But what I also kept was the answers. I genuinely found those more fascinating than the questions because if you are asking a question- you know that you don’t know. But if you are answering a question, you think you know. Of the 200 answers, 99% of the answers were incorrect. The people who gave the answers online were so confident that they had the right answers, they were advising other people; but it turned out they were either wholly or partly wrong most of the time. As a result, we introduced a category on the most common myths by using the same techniques.
What I found fascinating about that was finding out the level of misconception about what copyright even is, what it means, and what infringement is. Even the core basics are a misconception in society.
Q: What messages would you share with those interested in specialising in intellectual property?
There is no one path to a successful career in IP. I have tried to demonstrate that in my career, because I believe the best way to teach is to demonstrate- like the saying “be the change you want to see." I have often seen in law- that people expect a certain path. But it’s not true, especially in IP. You could for example study the sciences and then change to be a patent attorney, or like me do performing arts and then go on to specialise in copyright. Equally, you might study law and then just find IP really interesting. You are not at a disadvantage if you didn’t previously have experience in some kind of creative or innovative field. Although, as I mentioned I do feel that it is important to be a good IP lawyer or a good IP consultant to be able to understand the creator or innovator’s perspective.
I remember talking to a documentary film maker in the Netherlands a couple of years ago. He had a scene in his film that was not approved for contractual reasons. From a lawyer’s perspective, we might expect him to simply cut the scene so that the broadcast of the documentary could go ahead. But from an artist’s perspective, he said the scene was an integral part of his art form and production, and he cared more about that than his contract. So, if you cannot see things from a creator or innovator’s perspective, then you might not make a very good lawyer, because you do not have the empathy to understand and relate to creators and innovators. I would suggest going to events with creators or inventors. If your job is IP in films, then go to film festivals, talk to film makers to understand the way they see their art.
When I look at the people I aspire to be in the future, they are just really passionate and enthusiastic. If you are passionate about something- especially in academia, then you’ll be motivated to research it, and to publish. Ironically, academic writers certainly aren’t motivated by economic copyright remuneration - otherwise there wouldn’t be any scholarly articles! With the consultancy work I do, I really enjoy it because I feel helpful. If I am talking to someone who has an idea or business, I can help them with what to do to protect and exploit that. It is a very rewarding and dynamic job. One day, I can be talking to a documentary film maker, the next day, I’m talking to a photographer or fashion designer or I am looking at social media law. There is never a boring day. It is changing all the time.
I should say that there are of course challenges. Sometimes it might feel overwhelming because it is constantly changing so you have to keep up and here are many elements to my job. But you do get your head around that over time. So, I would say, go your own path. Be passionate and enthusiastic, and don’t worry if you feel overwhelmed.
Q: Can you share the intellectual property projects you are currently working on?
One of the things I love about my job is that you can do so many different things- literally, as many things as you can fit in.
I recently completed a paper on social media looking at copyright and Instagram, looking at copyright infringement, and the terms and conditions of Instagram. What I loved about that project is that I teamed up with another academic, Dr Sevil Yesiloglu from the media department at Bournemouth University. Her PhD was on social media and mine was on copyright and we combined our expertise to publish a paper together. The paper is in press so should come out shortly in the International Review of Law, Computers and Technology. I am currently working on a paper on damages in copyright infringement; I am presenting this at the Society of Legal Scholars conference in September
I am also currently researching on a project that is funded by the UK IPO on IP enforcement. I am working with a team as a visiting research fellow at CIPPM at Bournemouth University. There are four of us looking at the whole enforcement framework. There’ll be a report from the IPO coming out soon.
I am a Director of IPAN. That involves going to meetings, organising events like the World Intellectual Property Day, and I’m also the editor of their Issue Briefs which are educational resources, written by experts in different fields and we publish them on the website.
I am updating an IP chapter for the Information Technology Encyclopaedia. I was recently hired as the Deputy Editor of European Trade Mark Reports, which keeps me updated about trademark cases. I work on Book reviews for the IPKat. I also do IP Consultancy which is really ad-hoc. I have recently joined the team teaching for WIPO Academy. I also teach IP at undergraduate and post graduate level and supervise students.
Q: As the World Intellectual Property Day is celebrated on 26 April, what changes to intellectual property would you like to see?
As mentioned, I want more education about IP in schools, colleges and universities. Especially, if students are studying subjects that will lead them to a career that will involve some type of creativity or innovation. For example, when studying English at A Level students could be taught how books they read get published. Or it could be taught as part of Citizenship class in schools.
From a copyright perspective, there is a lot of work to do in the area of exceptions and limitations. I would like to see the law a bit broader in that sense, especially in things like open access research. For example, my students may not have access to my articles because of paywalls. So there needs to be expansion of fairer balance and fair dealing.
Finally, of course, I would like to see more women in IP to feel empowered and supported. Hopefully, that would inspire more women to join IP.