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Thus, Part III focuses on the genesis of rights and the way in which the vesting of copyright protection beatifies certain forms of 9. This is not to suggest that intellectual-property laws inevitably maintain and perpetuate existing social structures. They can also facilitate resistance and counter-hegemonic practices.

The first step to offsetting this imbalance is education. Some Indigenous peoples remain unaware of their rights. Thus, indigenous people must be sensitized to IPR and Western Corporate Patent Laws.

The solution really comes from strong communities that have autonomy, that have a vision of conservation. But that conservation must connect with the global level, with global benefits. The benefit of environmental conservation, but also equilibrium; eco-systemic balance. I dream. I belong to a nation of 1,350 people. That isn’t even as big as a school in a Western country. However, we are fighting so that our people can live well, that we can live sustainably, and that our vision can transform the vision of the Western world that is based on fossil fuels. You might say that this is a utopian vision, but this is our utopian vision.

Marc Steiner: No, no, no. Patricia, that was good. It’s important. We have to have those utopian visions for the future, what the future could be like. Pablo, come in for a minute. And then Teresa, please jump in after that. Pablo, you as a Marxist and a Marxist activist and theoretician, how do you see these contradictions that Patricia raised? It’s really important to probe into that. I’m curious from your perspective on that, and then I want Teresa to round it out. Pablo.

Lawyers tend to focus on current law, and at most, search for the immediate legislative history of a specific rule, to support a certain interpretation thereof. Legal historians take a broader view, study past events and search for grand ideas within and outside the law, as well as practices that can teach us about what happened, how, and why. With such knowledge, we can better understand legal processes or the reasons for a rule that otherwise might seem obscure; we can consider a theoretical angle that has escaped us or assess the advantages and disadvantages of legal approaches.1

Building on earlier studies,2 innovative at their time, in recent decades intellectual property (IP) scholars have rediscovered legal history.3 Most of this new literature focuses on Western IP norms and ideas, especially British, American,4and former British colonies.5 More recently, we enjoy new studies about IP in other countries.6 In this chapter, I wish to add some critical questions, in the context of imperialism and colonialism, namely, a post-colonial view of IP in a colonial context.

A truly just and sustainable environmental ethics can only be achieved if we strive for an overarching ethics of liberation based on an ecology of knowledge that explores the knowledge of ecologies. As Shiva (1993: 61–62) argues, a truly cosmopolitan world culture would consist of many local cultures existing together, mutually and respectfully exchanging and learning from one another. De Sousa Santos (2007: 39) infers that this objective can only be realised if we shift beyond the level of the logos predicated on the universal positivistic Western philosophical and scientific tradition and explore the exterior force of the natura naturans. Making this decolonial turn involves analysing human–nature relations through the lenses of the excluded “others” that are able to speak from where they are, or as Kwasi Wiredu states, from the locative ‘there’ using their own languages and drawing from lived experiences and histories that have wilfully been ignored, appropriated without recognition and erased from 1492 to the present. What is required is not a repudiation of modern science and Western environmental ethical discourse, but a decortication of the Euro- American viewpoint, removing the blindness, prejudice, violence and injustice that inform its epistemic and philosophical tradition. Indigenous people should be free to employ ‘border thinking’, applying their own knowledge whilst extracting ideas and practices from Western knowledge to understand their own contexts, without adopting the perspective that informs them.

The coloniality of nature can be traced back to the single most significant turning point in history, the colonisation of the Americas in 1492. Industrialisation in Europe precipitated colonial expansion into the New World in search of exotic places providing a cornucopia of natural resources and fertile lands to fuel a bourgeoning capitalist system (Guha and Martinez-Allier 1997: 82). The colonisation of the Americas not only marked the creation of the modern world system based on imperial designs rep- resenting a coloniality of power, it was justified on the pretext of a civilising mission, to save the souls of savages and to tame “wild” lands—what Rudyard Kipling referred to as the ‘white man’s burden’ (Beinart 2000: 270). On the pretence of spreading civility, ethics and justice, the colonial encounter sardonically led to the massacring of indigenes. The modernising and “civilising” mission of Europeans was defined by a suspension of ethics. As people without a soul, a history and reason belonging strictly to the anthropos, the unleashing of brutality and diversion from morals was an accepted practice—they needed to be rescued from their nothingness:

The paradox of 1492 is posited in the increasingly sharp conflict which interprets it as a “glorious achievement”, a heroic deed of discovery, “a triumph of the Christian West” on one hand, and on the other hand, as a brutal invasion and conquest which led to the genocidal extinction of large numbers of indigenes as well as set in train the now looming prospect of an ecological catastrophe (Wynter 1991: 258).

Quijano (2007) conceptualised the colonial matrix of power (“patron de poder colonial”) to describe the current world-systems entanglement with historical colonialism. The colonial matrix of power is an organising principle involving exploitation and domination across four interrelated domains: “control of economy (land appropriation, exploitation of labour, control of natural resources); control of authority (institution, army); control of gender and sexuality (family, education) and control of subjectivity and knowledge (epistemology, education and formation of subjectivity).” (Mignolo, 2007, 156). Although we draw on all four domains in our analysis, the article focuses on the control of economy (namely labour and resources) and the control of subjectivity and knowledge. Quijano (1993) argues that within the matrix, these domains are naturalised around the colonial articulations of “objective” and “scientifc” notions of race and racial classifcations. These categories underpin the racial division of labour, resources and capital that constitute one of the most visible organising principles structuring modern societies.

The exercise of economic dominion over both labour and resources is closely intertwined with the ideological construct of European technological preeminence used to justify European colonialism. European colonisers imposed authority in science, culture and societal administration while communities from Africa and Asia were expected to acculturate and obey while providing labour to the colonial project (Adas, 1989). Quijano (2016) links the manipulation and control of technological resources by colonial powers to the analytic of modernity/coloniality. He argues that technologies of communication and transport were used to instrumentalise the superiority of European modernity, which were mutually constitutive with the violence of colonialism. This highlights the important fact that the colonial legacy of Western dominance, in terms of both modernity and technological progress, continues the legacy of colonial domination despite the elimination of political colonialism in many areas of the world (Quijano, 2007).

Scholars have paid considerable attention to how patent ownership threatens the resources of indigenous peoples (Boyle 1996; Drahos and Mayne 2002; Finger and Schular 2004). They also note how patents are based on Western notions of property rights that conflict with indigenous peoples’ ways of knowing (Coombe 1998; Brown 2003; Anderson 2009; Boateng 2011). Although valuable, such studies can leave contradictions of postcolonial science projects unaddressed. For instance, scientists in South Africa are trying to claim patent ownership for themselves, but at the expense of local indigenous peoples. Indigenous San peoples are demanding contractual benefit sharing to obtain much needed resources and recognition, but at the cost of having to navigate between notions of themselves as both modern and traditional.

A feminist postcolonial technoscience approach, with its attention to the cultural legacies of colonialism in shaping science and society, offers alternative theoretical insights toward a decolonizing of patent law and its relation to science. By decolonization here, I mean a set of research processes (and political practices) that seek to change the hegemonic ordering of knowledge production. I take seriously Linda Tuhiwai Smith’s notion of “decolonizing methodologies,” which engages with how histories of imperialism and colonialism depend upon and position Western knowledge production as superior to the rest. Drawing upon Smith, I engage in what she considers a decolonizing project of “re-fram-ing” by examining patent law and benefit sharing not through the dominant language of law and economics, but as techniques of neoliberalism embedded within racialized and colonial legacies (Smith 1999).

Intellectual Property, Race, and the Making of Americans”  

Trademark law, which existed at only a state level until the mid-1900s,139 both amplified and quelled national desires and anxieties associated with race, national identity, citizenship, and economic prosperity. Passed in 1946, the nation’s first federal trademark statute, the Lanham Act,140 played a central role in perpetuating and reinforcing the whiteness of U.S. citizenship and racial hierarchies from the Antebellum Era that Emancipation 53 Imagistic representations of racial scripts transformed racial common sense into visual vernacular while simultaneously calling upon (white) American citizens to come together to form strong and resilient capitalist markets. 

Intellectual property law shapes and is shaped by citizenship. Citizenship, as a category, is prefigured by racial scripts in ways that normalize some people as citizens and others as non-citizens, which, in turn, circumscribes the outcome in intellectual property cases. Racial scripts describe “how racialization processes extend across time and space and affect racial groups even when they do not cross paths.”31 Understanding racist rhetorics in this way highlights the simultaneous durability and flexibility of language and sentiment about race, in a manner that is consistent with theorizations of racial formation. The play in the joints of racial scripts protects white supremacy, often by racializing people of color using one or more sets of racist stereotypes in ways that provoke strong racial feelings. Historical uses of racial scripts prime audiences for accepting them again, in different contexts. 

According to Vincent Pham, racial scripts are “anchored in history''32 and “reoccur, interact, and work concomitantly to constitute our ideas about some racial groups in relation to other racial groups.”33 These racial scripts also often “reinforce a cultural logic of race as the basis of national belonging [and] legitimate citizenship.”34 As critical race studies scholars have consistently demonstrated, though formal equality may be a reality in contemporary American law, including intellectual property law, informal racism seeps into legal doctrine and the practice of law. Pinpointing the languab  ge that intellectual property law uses to invoke conceptions of citizenship and related racial scripts, particularly as they code for who has the capacity to create/infringe, reveals an underlying racial episteme, calcified in presidential trenchant judicial decisions. 

Biotech industry profits have soared over the past few years. The biotech industry has become a business that gains momentum from scoping out organic materials and chemical substances that can be developed into a commercial product. Many of those materials and compounds come from plant life within Indigenous environments.

Unfortunately, these biotech corporations are not consulting Indigenes before using their products for the betterment of humanity; they simply take them out of the equation and heinously exploit the plants and natural resources that these people have been using in a sustainable manner for centuries. What is worse is that these corporations legally place their own control and rights over the resources that Indigenes have been using for survival.

From the defeat of the coup government in Bolivia, the election of Xiomara Castro in Honduras, and the rise of Andrés Manuel López Obrador in Mexico, to the historic election of Gustavo Petro in Colombia and the return of Lula in Brazil, left-leaning governments are changing the political landscape of Latin America. However, even more progressive parties and ruling coalitions have failed to rein in the violence of the resource extraction economy and the domineering power of international capital flowing through mining, drilling, and deforestation operations across the hemisphere. Indigenous and environmental activists from Ecuador to Bolivia say that today’s extractivist economy perpetuates the violence of colonial domination, and warn that things are only going to get worse over the course of the 21st century.

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Quijano (2007) conceptualised the colonial matrix of power (“patron de poder colonial”) to describe the current world-systems entanglement with historical colonialism. The colonial matrix of power is an organising principle involving exploitation and domination across four interrelated domains: “control of economy (land appropriation, exploitation of labour, control of natural resources); control of authority (institution, army); control of gender and sexuality (family, education) and control of subjectivity and knowledge (epistemology, education and formation of subjectivity).” (Mignolo, 2007, 156). Although we draw on all four domains in our analysis, the article focuses on the control of economy (namely labour and resources) and the control of subjectivity and knowledge. Quijano (1993) argues that within the matrix, these domains are naturalised around the colonial articulations of “objective” and “scientifc” notions of race and racial classifcations. These categories underpin the racial division of labour, resources and capital that constitute one of the most visible organising principles structuring modern societies.

The exercise of economic dominion over both labour and resources is closely intertwined with the ideological construct of European technological preeminence used to justify European colonialism. European colonisers imposed authority in science, culture and societal administration while communities from Africa and Asia were expected to acculturate and obey while providing labour to the colonial project (Adas, 1989). Quijano (2016) links the manipulation and control of technological resources by colonial powers to the analytic of modernity/coloniality. He argues that technologies of communication and transport were used to instrumentalise the superiority of European modernity, which were mutually constitutive with the violence of colonialism. This highlights the important fact that the colonial legacy of Western dominance, in terms of both modernity and technological progress, continues the legacy of colonial domination despite the elimination of political colonialism in many areas of the world (Quijano, 2007).

Indigenous peoples have been marred for centuries by the incredulous theft of knowledge they obtained, and even resources they use. The thieves are superior, more developed powers that jealously protect the rights to knowledge that is not rightfully theirs. They then refuse to recognize that the true ownership of such precious information belongs to Native Peoples. Indigenous knowledge is stolen without the slightest consideration to the powerful implications that it comes equipped with. The moral repercussions behind such an ethical system leads to loss of Native culture and sustainability and a shift from using Native knowledge and resources for social needs to profit generation. These problems are exacerbated by the use of Intellectual Property Rights (LPR), and the situation has delved to the point where nations bypass indigenous consent and wrongfully patent their knowledge and resources.

Why Indigenous Knowledge Is So Important

Intellectual Property, Race, and the Making of Americans”

Understanding the racial scripts embedded in intellectual property law requires treating the legal regime as both a collection of individual bodies of law and a mass noun. While Richard Stallman is correct that intellectual property is a “seductive mirage”44 through which policy differences between copyrights, trademarks, and patents are obscured, the term “intellectual property” has rhetorical properties that when used in public culture require study, especially with respect to race. Discursive deployments of intellectual property as a single concept facilitate the creation of a homogeneous and racialized category of creatorship as well as the mobilization of public feelings about knowledge production. Moving between intellectual property law as a mass noun and as a collection of bodies of law is useful in teasing out the structural and rhetorical implications of the racialized practices through which racial hierarchy is sustained.

Why think that control—either coercive or non-coercive—grounds property rights? Feser provides two arguments to support this contention. First, he makes the comparative plausibility argument discussed above, citing the moon lander case as evidence that establishing control is a plausible form of initial appropriation. However, as discussed above, such comparative assessments do not establish the desired conclusion. Second, Feser argues that control is what grounds people’s self-ownership—i.e., the rights they have to use their bodies, exclude others from using their bodies, transfer these rights to their bodies, etc. He posits that what grounds these intuitively plausible rights is that we exercise control over our bodies; indeed, a person gains the rights over her body by “just ‘showing up’ and being the first to ‘take possession’” of it, with coercive enforcement of those rights then becoming permissible.22 Further, if establishing control is how one gains ownership rights of one’s body, why wouldn’t establishing control of a natural resource also give one rights over that resource?23

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For example, Indigenous Peoples’ ‘mixed economies’, which combine subsistence and market activities, sustain Indigenous values that underpin biodiversity conservation, while contributing to nutrition, health, wellbeing and climate resilience, and generating income. Local markets and short value chains are often prioritised, rather than global export markets.

Abstract This paper investigates an aspect of the question of whether capitalism can be defended as a morally legitimate economic system by asking whether capitalism serves progressive, feminist ends of freedom and gender equality. I argue that although capitalism is subject to critique for increasing economic inequality, it can be seen to decrease gender inequality, particularly in traditional societies. Capitalism brings technological and social innovations that are good for women, and disrupts traditions that subordinate women in materially beneficial and socially progressive ways. Capitalism upholds the ideology of individual rights and the ideal of mutual advantage. By institutionalizing mutual advantage through the logic of voluntary exchange, progressive capitalism promotes the idea that no one is to be expected to sacrifice their interests with no expectation of benefit. Thus capitalism opposes the traditional, sexist ideal of womanly self-sacrifice. Keywords Capitalism Feminism Ethics of capitalism Inequality Tradition Innovation Introduction In his seminal textbook, Business Ethics, Richard De George treats the issue of whether the capitalist system as a whole is morally acceptable as a fundamental issue of business ethics (De George 1999). His interest in the morality of capitalism no doubt stems from his earlier research on Marx and Marxism, but he takes pains to frame the field in terms of the justice of the system of capitalism and the practices of business within the system. Capitalism, on his analysis, not only offers the great goods of freedom and efficiency, but also brings with it moral dangers that must be kept in check through government programs, namely inequality and indifference to those who cannot compete in the market well enough to provide for themselves. Neither capitalism nor socialism, he argues, is inherently immoral, yet capitalism offers more goods than socialism. Although business ethics has, for the most part, assumed the moral legitimacy of capitalism, a variety of criticisms have been raised to the system as a whole as well as to the morality of particular markets. We might call the issue of the morality of the capitalist system as a whole a meta-business ethics question. In the spirit of Richard De George’s meta-ethical investigation of capitalism, I pursue an aspect of this question of whether capitalism can be defended as a legitimate economic system, namely, ‘‘is capitalism good for women?’’ Capitalism is under attack from within and without. The financial crisis that began in 2008 reveals precariousness in the financial world that many political leaders and economists thought had been eliminated after the Great Depression. Critics of capitalism come from a variety of directions: concerns about the environment, world poverty, workers in the developed world who see their jobs being outsourced, worries about human trafficking and slavery. One of the most developed sources of criticism of capitalism comes from feminists who see capitalism as not only bad for the natural world and for the working class, but also as particularly bad for women. (Bahramitash 2005; GibsonGraham 1996; Visvanathan et al. 1997) Feminists charge that capitalism inevitably leads to inequality, from which women suffer more than men. Socialist feminists offer a vision of economic democracy that they say will improve life for almost everyone, and particularly for women.

In a recent book (Cudd and Holmstrom 2011), I argued that capitalism has brought about great changes in the quality and length of human life in the twentieth century: the income takeoff (the vast increase of per capita income of developed nations), the health transition (raising the life expectancy by upwards of 50 years), and the fertility transition (from an average of 6 children per woman to around 2). In this paper, I delve further into the question of whether capitalism is good for women. A major problem with capitalism is that it increases inequality, which is especially harmful to women and other vulnerable groups. Capitalism increases economic inequality in the first instance, but this in turn tends to create political and social inequalities. Inequality, I agree, needs to be controlled if capitalism is to be progressive and defensible. I defend such a controlled capitalism in two ways that are particularly relevant to feminism as a progressive social movement for human freedom. First, capitalism promotes innovation: it promotes technical innovation that tends to improve quality and length of life for everyone, but particularly for women. But more importantly for the feminist defense of capitalism, it promotes social innovation, in particular the destruction of harmful, patriarchal traditions. Thus, the second defense I will make of capitalism is that it opposes tradition fetishism and reduces the oppression of traditional societies that impose hierarchies of gender and caste. Capitalism is a system in which there are non-discriminatory, legal protections of decentralized, private ownership of resources, cooperative, social production for all citizens, and free and open, competitive markets for exchange of goods, labor, services, and material and financial capital. The first thing to note about this definition is that it implies the socially and governmentally sanctioned nature of the system. Laissez-faire capitalism is an unrealizable ideal that could never actually obtain in fact because for capitalism to even exist, let alone prosper, property rights need to be defined by a legislative body and protected by a police force. Markets require trust and security, such as can only be supplied by a relatively complex social system of rights, trust, and protection. (Anderson 2004) 1 Social, cooperative interaction is at the heart of the system, in both the creation of the social, legal infrastructure that frames economic production and exchange, and in production and exchange themselves. The second thing to note about this definition is that it emphasizes the competitive character of the system. Capitalism is a form of cooperative competition, a set of socially accepted rules within which players seek their best advantage, as they see it. Its normative value as a social system will depend upon both the rules that delimit the game and the values by which its players define their best advantage. Finally, the third thing to note is that this definition does not specify how capitalism relates to the distribution of resources, since government or private charity can redistribute the outcome of production and exchange— but only to a point. Redistribution of goods that removes the ability or incentive for people to create firms and produce for exchange makes the system something other than and opposed to capitalism. My view is that capitalism can be progressive toward feminist ends. This is a controversial view. I defend it by addressing two critical questions about capitalism. First, does capitalism bring about less oppression of women (and other groups) over time? This question can be asked looking backward and looking forward. Since I think that the answer is very clear looking backward that oppression of gender groups, racial groups, castes, and other groups is less now than before the advent of capitalism in the industrial revolution,2 I will concentrate on two forward looking questions: (1) does capitalism better eliminate current oppression than any alternative economic system? (2) Does the apparent increase of inequality under capitalism imply that it is a regressive social institution? To this second question I now turn.

Western economics is not only destroying the environment. It is also destroying Indigenous peoples’ holistic development models that ensure balance with nature, and provide alternative paradigms for sustainable development.

For many of the world’s 476 million Indigenous peoples, balance and reciprocity (PDF) with nature are fundamental principles that guide all aspects of life. Rather than privileging human economic goals and pursuing nature conservation separately, many Indigenous societies seek to achieve ‘holistic wellbeing’ or ‘Buen Vivir’, which means the wellbeing of both people and nature together.

Mainstream economic activities on Indigenous lands have rarely benefited Indigenous Peoples, who make up 6% of the world’s population but 19% of the extreme poor.

In fact, their situation has often deteriorated (PDF), due to loss of land and natural resources, and the weakening of cultural ties and social cohesion. Integration with market economies has led to social tension and conflict, limited opportunities for meaningful employment, low returns for producers and a shift towards consumerist lifestyles.

There are three quick responses that can be made to this argument. First, the argument rests on an equivocation between the kind of control one has of one’s body and the kind of control Feser associates with initial appropriation. In the case of the body, the agent exercises direct control over the body in the sense that she can manipulate the body simply by willing it to do certain things; by contrast, the control over resources Feser describes involves physically keeping others from being able to manipulate those resources, e.g., by building a fence or placing armed guards around a patch of land.24 However, if agential control is what makes the thesis of selfownership plausible, it is unclear why physical control would make resource ownership plausible.25

Second, even if one grants that both forms of control are equally relevant to establishing ownership, Brian McElwee persuasively argues that the plausibility of the self-ownership thesis stems not only from the fact that one controls one’s own body, but also from the facts that one feels pain and pleasure through one’s body, one needs one’s body, and one’s body is irreplaceable when it comes to satisfying this need.26 If these conditions are individually necessary and jointly sufficient for having ownership of an object, then mere control of a natural resource will not suffice to establish ownership of that resource.