Intellectual Property is inseparable from the racial scripts that ensure the continuity of racial capitalism and colonial domination

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 3-6, 2020

Tracing “racial scripts” is a tangible method for understanding America’s racial episteme and how it informs citizenship and creatorship/infringement as discursive formations. Racial scripts are historically grounded and flexible racist logics about racial groups that can be accessed at any time to exclude the original or other people of color.5 They operate as shorthand mechanisms for calling upon dominant American ideals of national identity, patriotism, political economy, and personhood without necessarily explicitly invoking racial categories or colonial logics. In this way, racial scripts can be baked into the seemingly colorblind ideals of American citizenship that, in turn, inform intellectual property law. Examining how intellectual property law operates as a space of racial formation in which the meaning of racial categories evolves over time is a prerequisite to undoing entrenched white privilege and democratizing knowledge production and ownership.6

Intellectual property law is also a “racial project,”7 that reproduces particular racial orders, in which people of color are coded as lacking the capacity to create. Unspoken longings, fears, anxieties, and prejudices wrapped in economic and legal language move us to prefer certain intellectual property narratives over others, predictably to the detriment of people of color. When anti-racist, anti-colonial activists grapple with the racial episteme that structures intellectual property law, they can advocate for strategies that resist the underlying drivers of unjust copyright, patent, and trademark policies. While such resistive strategies may ultimately still provide only precarious and fleeting relief, as Derrick Bell famously argues, they confront the fears and anxieties that sustain racial and colonial knowledge hierarchies.8

This book contributes to a growing body of scholarship at the intersections of race and intellectual property law through its historically situated consideration of the links among race, coloniality, and knowledge governance.9 It traces evolutions in the racial rhetorics around copyrights, patents, and trademarks that unfolded in parallel with the economic and political turns of the nation. Such an inquiry is useful in contextualizing the increasingly important legal regimes governing knowledge that mark some bodies as not only inherently incapable of creatorship but also inherently undeserving of citizenship. As the racial rhetorics of intellectual property law have changed over time, in ways that are consistent with post– civil rights era colorblindness, they have come to exclude people of color in new and different ways.

Accordingly, addressing intellectual property law’s structural inequalities requires thinking about how these racial evolutions persist in a nation that claims to value all people equally. When marginalized groups are considered to be “aberrations from the ethnoclass of Man”10 contra a white ideal, as Alexander Weheliye writes, they cannot fully occupy the space of creatorship or (intellectual) property ownership until the nation attends to the contours of inequality and exclusion. While Weheliye is commenting on anti-Blackness, his statement is true for all those people of color who are considered outside of the ethnoclass of Man. In the so-called information economy, intellectual property justice is racial justice.

Working through key moments in intellectual property history in the period between 1790 and 2016 reveals that even as American understandings of creatorship/infringement have seemingly evolved, they have actually remained remarkably racially conservative and consistent over time. This book will not provide an exhaustive account of race, coloniality, and intellectual property law during that period. Such a project is neither possible nor desirable. Instead, it focuses on reading some of the most important and notable historical touchstones in copyright, patent, and trademark law as examples of the continuity of racial scripts and colonial relations of domination in the context of knowledge production

INTELLECTUAL PROPERTY CITIZENSHIP

Intellectual property law is a set of rhetorics that governs knowledge production. These rhetorics interface with larger cultural narratives about national identity, citizenship, personhood, and economic production.11 Copyright law, the law of creative works, affords a limited monopoly to authors and artists who create literary, dramatic, musical, artistic, and other intellectual works that are “fixed in any tangible medium of expression.”12 Patent law, the law of inventions, affords a limited monopoly to inventors who create new and previously unknown technologies, which they disclose to the public. Trademark law, the law of identifying marks, affords a limited monopoly to trademark owners who use words, names, symbols, and designs to identify their goods and distinguish those goods from the goods of others.

These areas of law are distinct and different from one another, yet they are often lumped together in policy discussions because they govern knowledge production and knowledge protection. There is a strong argument for disentangling them when thinking about their respective cultural, economic, and political workings, as Richard Stallman argues.13 Yet it is also useful to think across them, in a categorical sense, in order to identify their central stakes and metanarratives. In asserting that intellectual property law is a rhetorical enterprise, I mean that copyright, patent, and trademark law, like all other legal regimes, are discursive formations shaped by culture, identity, and power. They are not a set of universal or immanent rules about knowledge governance that originate with an infallible authority. They are negotiations of social values and ethical mores and their practical implementations. Rhetorical study can reveal where and how race, a socially constructed category, moves in intellectual property law, particularly over time

Intellectual property citizenship, as I use the term here, points to the seemingly permanent nexus of copyright, patent, and trademark law and citizenship, a concept that necessarily implicates race, coloniality, racial capitalism, and personhood. It is an analytical tool for understanding the structural complexities of the legal regimes that define the mass noun “intellectual property” and a frame for rendering visible the power structures that prevent racially equitable outcomes in intellectual property contexts. “Citizenship,” a term that is often considered for its formal legal properties, is also a culturally negotiated concept through which certain individuals are included/excluded from the body politic. When it intersects with intellectual property discourse, as it has for hundreds of years, citizenship operates as a discursive vehicle for excluding racially marginalized groups from legal practices of knowledge production and ownership.14

As Jessica Silbey contends, intellectual property’s narratives are really origin stories about the nation and its people, used to define and negotiate the boundaries of Americanness itself.15 Collective myths around intellectual property citizenship reinforce and update Euro-American ideals of Romantic authorship/Romantic inventorship,16 rendering them legible for the cultural politics of the era through evolving rhetorical constructions of hard work, innovation, ingenuity, and ruggedness. In the American imaginary, authors are creatives who produce valuable cultural works; inventors are geniuses who transform flashes of brilliance into practical inventions; trademark owners are producers of goods who protect hard-earned authenticity and quality.17 Intellectual property citizenship is a mythical ideal defined in part through its relation to these characteristics of individuals who attain the American Dream. Further, it helps to show that intellectual property is a racialized concept, which obscures whiteness and racial power through the mobilization of national feelings of hope, optimism, and pride, as well as fear, anxiety, and protectiveness.