In the face of an intellectual property regime intrinsically sited in neocolonialism and racial capitalism, you should vote negative for a decolonization of intellectual property – this praxis rescripts racial logics and articulates new resistance outside the confines of the racial contract

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 195-198, 2020

Enlightenment conceptions of colonial subjects as barbarous, childlike, innocent, and without higher intellectual capacity came to be embedded not only in intellectual property law in the eighteenth and nineteenth centuries, but in the very logics of global copyright, patent, and trademark law as well. Ruth Okediji observes that, historically speaking, intellectual property law from the nineteenth century onward discriminated against the developing world, centrally building upon the idea that colonial subjects lacked the intellectual sophistication to produce knowledge. She contends:

In essence, the extension of intellectual property rights was not directed at the inhabitants of the governed territories at all, but instead to facilitate commercial relations among colonial powers as trade between European powers occurred on and among the various territories on behalf of foreign sovereigns. Intellectual property law was not merely an incidental part of the colonial legal apparatus, but a central technique in the commercial superiority sought by European powers in their interactions with each other in regions beyond Europe.12

Similarly, Edward Said observes that “[o]n the one hand, there are Westerners, on the other there are Arab-Orientals; the former are (in no particular order) rational, peaceful, logical, capable of holding real values, without natural suspicion; the latter are none of these things.”13 Philosophers and political theorists in the pre-American era made similar claims as well, increasingly marking whiteness as a signifier of the capacity to engage in fully formed thought as well as qualify for the rights and entitlements of citizenship.14 Colonial subjects, the objects of the production of European knowledge, could not be its creators. Instead, they were categorically excluded from the imaginary of the Romantic author, which crystallized in the eighteenth century.15 In Rudyard Kipling’s words, colonial subjects were “half devil and half child,”16 suitable only to be taken up as part of the white man’s colonizing burden. Because Europeans treated colonial subjects as other than citizen, colonized peoples had little ability to protect traditional knowledge. Intellectual property law was thus not simply an incidental means of protecting creators; it was an important element of colonial structural power and domination.17

While these arguments retread some of the ground I have covered earlier, they also raise a much larger problem in intellectual property law than that of even American racial scripts. They demonstrate that concepts such as true imagination, human progress, and the male consumer gaze are embedded within the ideologies of modernity and coloniality. The central organizing philosophies of intellectual property law—a body of legal regulation that protects the Enlightenment creator—have persisted for centuries. Martha Woodmansee observes that the figure of creator has been remarkably inelastic, not changing even as postmodern theorists have argued for its reconstruction.18 The inflexible ideal of the creator is also an important nexus of the modernity/coloniality binary in intellectual property law, one that is, as earlier parts of the book have demonstrated, often tied to conceptions of national identity in the United States.

For Grosfoguel, (neo)colonialism is necessarily linked with a hierarchal understanding of knowledge production that is also fundamentally racialized. He writes: “This epistemic strategy has been crucial for Western global designs . . . European/Euro-American colonial expansion and domination was able to construct a hierarchy of super and inferior knowledge and, thus, of super and inferior people around the world. We went from . . . ’people without writing’ to . . . ’people without history’ to . . . ’people without development.”19

Intellectual property law, without attentiveness to modernity itself, is a mechanism for maintaining, not undoing, the racial and epistemic hierarchy that Grosfuguel identifies. Traditional knowledge remains largely outside the scope of protection of intellectual property law because epistemic domination is deeply embedded within legal theory and doctrine. Adherence to Enlightenment conceptions of authorship and inventorship continues to decenter the knowledge of people of color while advancing purportedly universal Western development agendas. Larger-than-life global brands reinforce the epistemic domination that authorship/inventorship produce by signifying quality in raced ways and exploiting labor in a global, selfdestructing system of racial capitalism.

Rewriting the racial scripts that undergird intellectual property law requires grappling with legal and economic structures but also fundamental orientations toward knowledge itself. In this sense, decolonial theory’s emphasis on epistemology offers inroads into undoing intellectual property law’s racial and (neo)colonial exclusions. The project of decolonization emerged from the Bandung Conference of 1955, which took on critiquing the epistemological foundations of modernity as a justification for (neo)coloniality as its central agenda.20 As former colonial states gained their independence, they were corralled into international regimes of free trade and economic harmonization, which also created international intellectual property rights. TRIPS, in particular, operated as a predominantly Western project of international law, one in which “white men of letters and science . . . were the gatekeepers of Western and modern knowledge.”21 The conversations in Bandung laid the groundwork for future critiques of neoliberal colonialism, particularly as realized through international governance.

Reading intellectual property law through the lens of decolonization— as well as the related lenses of postcoloniality and dewesternization—allows for historical and structural engagement with (neo)colonialism, from its dismissal of particular forms of creatorship to its alignment with the Doctrine of Discovery. Decolonial theory offers a means of using modernity and coloniality as the fulcrums for theorizing intellectual property inequality and articulating resistive practices. Decolonial theory also offers insight into how and why racial capitalism developed, as part of colonial exploitation of physical labor, which was articulated in opposition to intellectual labor and how and why individuals might undo those linkages. Through the lens of decolonial theory, intellectual property law can be read as part of a larger system of advancing particularly Western development agendas under the aegis of protecting knowledge as a valuable commodity, in ways that definitionally marginalize people of color and their capacity to think original thoughts.

Alexander Weheliye’s work implicitly underscores the need for such decolonization in undoing the violence of racism. He writes: “Apportioning personhood . . . [through citizenship] maintains the world of Man and its attendant racializing assemblages, which means in essence that the entry fee for legal recognition is the acceptance of categories based on white supremacy and colonialism, as well as normative genders and sexualities.”22 When read alongside the work of decolonial theorist Nelson MaldonadoTorres, who like Weheliye takes up the work of Sylvia Wynter in laying out his understandings of decoloniality, the links among race, intellectual property, citizenship, and personhood become clear. He writes:

Taking Du Bois and Wynter’s lead, I would like to suggest that from the perspectives of the repeatedly racialized groups of modernity, particularly indigenous people and people of African or Afro-mixed exslave descent, but also Jews and Muslims, a concept of Being premised on what is often referred to as the dialectics of modernity and the nation, and their supposed overcoming by the emergence of imperial sovereignty or Empire, miss the non-dialectical character of damnation. That is, in short, that what are changes for many, for those whom Frantz Fanon called the condemned of the earth seem rather to be perverse re-enactments of a logic that has for a long time militated against them.23

While legal scholars often aim to achieve intellectual property equality through policy reform, critical race studies scholars, and decolonial theorists direct us to the need to identify the logics that underlie racial inequality in copyrights, patents, and trademarks. Given that intellectual property law is intertwined with notions of citizenship, which are themselves rooted in the modernity/coloniality dichotomy because of their distinctly European genealogy and relationship to the emergence of the contemporary nationstate, such critiques provide a means of approaching the problem of racial inequality at the root, with ideological depth.

Decolonial theory offers a way of deracializing knowledge production as well as conceptions of citizenship, nation, and personhood, through the embrace of language and practices that are delinked from modernity. Epistemic worldmaking takes a variety of forms, often imperfect ones. But it begins to grapple with the larger racial assemblages and rhetorics of race that make creatorship into a category from which people of color are ideologically excluded, in whole or in part, merely on the basis of identity