IP isn’t monolithically racist. It’s an effective shield for Black creators. AND, abandonment guarantees cultural expropriation.

Given the the frequently inflammatory and oversimplified debates about copyright — indeed, discussions (sic) which are frequently referred to as the “Copyright Wars,” I fear that there are too many people who may treat Professor Vats’ observation as an indictment of copyright, rather than as an indictment of the present limitations of its scope, and of legacy industry practices based on exploitative practices which in too many cases are also aligned with race. I’m not sure what Professor Vats will argue in her book, but I highlight that she has, in her tweet, properly observed that the negative consequences flow from failure to extend rights to non-western forms of expression rather than as an undue limitation on access. I hope this complexity will inform and be reflected in this important discussion.

The potential of copyright to expand the interests of the Black creative community was perfectly captured by Professor Mtima in a piece he penned about the CASE Act — a provision of law recently adopted to create a small-claims court for copyright violations. Mtima wrote: “For a large segment of the creative community, copyright protection is a lot like McDonald’s was for Harlem kids in the 1960s — close enough to get our attention, but too far beyond our reach to mean anything.”

Or his observations in relation to the importance of choreographer Jaquel Knight seeking copyright for dance: “On a cultural level, it could be paradigm-shifting. “There’s a notion throughout much of the Black community that the law can only be used as a tool to exploit people…that copyright is inherently racist and biased,” says Howard University’s Mtima. “And that’s just not true.”

I have already gone longer than was my intent in responding to a tweet, so I’ll wrap up quickly, particularly inasmuch as I really only had a simple point to convey — that intellectual property is indeed “built on racial scripts.” IP norms are part of the normative universe — all parts of which are influenced by racial scripts. IP didn’t magically escape that. But copyright plays an important role in promoting economic development & cultural diversity. As I noted in a recent open letter to UNESCO which itself largely recites comments I had filed with the UN Special Rapporteur in the Field of Cultural Rights in 2014:

“Make no mistake — cultural hegemony flows not from the protection of intellectual property, but from its absence…An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator — is central to a society’s ability to foster cultural production. In its absence, dreams and creative lives perish. The moral and economic aspects of this equation are inseparable. We simply must ensure that all creators, regardless of their location, are able to enjoy the fundamental human right to choose the manner in which their creations are used as reflected in international law…By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself.”

Or, as stated much more succinctly by Bankole Sodipo, a founding member of the Africa IP Group (AIPG) and professor of law at Babcock University in Nigeria at a regional workshop held in Dar es Salaam: “Today, more than ever, Africans whether living on Africa soil or in the Diaspora need to network to nurture our intellectual property. We need to share experiences, to evaluate and consider how we can promote our culture, our creative industries, our innovation and our investments and ensure that intellectual property becomes a tool for African economic emancipation.”

To advance the interests of societies around the globe, it is essential that we generate a greater understanding of the role of intellectual property as a tool for economic emancipation, a catalyst for cultural diversity, and a powerful protector of individual dignity and fundamental human rights, and that — as wisely highlighted by Professor Vats, we pay close attention to how issues of race shape, and are shaped by, our present constructions.