Economic analyses of intellectual property is incorrect and masks white supremacy, reproducing colonialism and racial capitalism

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 15-17, 2020

In responding to arguments about race, intellectual property scholars often appeal to economics as an explanatory framework for the outcomes in question. Despite Zahr Said’s optimistic observation that critiques to it are flourishing,49 law and economics has and continues to be the predominant lens for theorizing intellectual property law. Often, as Mitu Gulati and Devon Carbado argue,50 Critical Race Theory and law and economics go so far as to offer competing instead of complementary explanations for macro and micro institutional practices that produce inequality. Yet investigating the relationships among (intellectual) property, citizenship, national identity, and personhood calls for considering how race and capitalism are coproduced, particularly in a world in which former attorney general Michael Mukasey referred to intellectual properties as America’s most “precious commodities.”51

Racial capitalism, as Cedric Robinson conceptualizes it, points us to the complex relationships between capitalism, race, and (neo)colonialism.52 Jodi Melamed characterizes the scholarship that flows from Robinson’s work—which describes this book as well—writing: “A thread of emergent critical understanding, proceeding from the recognition that procedures of racialization and capitalism are ultimately never separable from each other, seeks to comprehend the complex recursivity between material and epistemic forms of racialized violence, which are executed in and by core capitalist states with seemingly infinite creativity (beyond phenotype and in assemblages).”53

Read through the lens of racial capitalism, intellectual property rhetorics and structures are revealed to be part of a larger system of race and political economy that is “fully saturated by racialized violence.”54 The economic value of devaluing the creatorship of people of color intersects with the economic value of legally, structurally, and ideologically overvaluing white creatorship in ways that reinforce the exclusion of people of color from that same category. Intellectual property outcomes, which mediate conflicts around already heavily circulated and valued cultural objects, are never produced in line with rational, race neutral economics, if such a thing even exists.

Robinson’s formulations of racial capitalism, a concept that Melamed aptly refers to as an “activist hermeneutic,”55 critiqued Marxism’s presumption that capitalism would do away with racism in its development. Instead, “antinomies of accumulation require loss, disposability, and the unequal differentiation of human value, and racism enshrines the inequalities that capitalism requires.”56 Knowledge production, an activity that, like property ownership, consistently structurally privileges the creatorship of white persons on the basis of their “superior” mental capacities, is a racialized form of capitalist production. Histories of appropriation of Black blues and jazz music,57 commodification of indigenous knowledge,58 and circulation of derogatory brands,59 for example, demonstrate the many ways in which intellectual property has worked by and through the (racially) capitalist exploitation of people of color.

Notably, racial capitalism, like the relationship between intellectual property, race, and citizenship, has evolved over time. Significantly, the development of the term intellectual property and the conflation of copyrights, patents, and trademarks aid in ensuring the smooth operation of capitalism, in part by maintaining a racially unequal terrain of creatorship. Reading across types of intellectual property renders visible the manner in which individual bodies of law are mobilized rhetorically in order to justify systems that have racialized impacts. In this sense, intellectual property law is doubly inflected by race, first as a space for the negotiation of racial desire and second in the implementation of policies and proposals that further entrench systems of racial capitalism.

More importantly, the case studies in The Color of Creatorship demonstrate that economic arguments flatten out the racial complexities of intellectual property law in ways that make it appear that people of color are “winning” despite doing so within a system that is ideologically rigged in favor of whiteness. Scholars who continue to argue for economic explanations for outcomes in intellectual property cases without analyzing race and (neo)coloniality miss the forest for the trees. Even the important critiques of unequal contract negotiations, doctrinal insufficiency, and colonial power differentials that scholars like Kevin J. Greene, Lateef Mtima, Peter Drahos, and Olufunmilayo Arewa make shy away from offering historically and ideologically situated explanations of how and why economics fails to produce equity and inclusion in the intellectual property context.