IPR is no different than the white supremacist property regime – Whiteness is the “creator” while blackness is the “infringer” forcibly subjugated to purify rights – IP furthers the goal of keeping white at the top.

Bell's reading of the American legal culture and order has been further investigated by Cheryl I. Harris in her renowned journal article, entitled 'Whiteness as Property 543. Harris' work in question constitutes the centerpiece of CRT's 'Whiteness' studies. 544 It aspires to present ‘the historical and continuing pattern of [White] racial domination and economic exploitation’ United States. 546 Thus, by adopting a deconstructionist interpretation of the legal and social history, 545 in the Harris examines the predicaments of race and law in general, and property law in particular. 547 In doing so, she emphasizes the manipulative use of law by the ruling-elite, or the ones in power, in order to entitle the members of their own racial group with legally protected and exclusive rights, while subordinating people of color. 54

Although Harris focuses on the validation of ‘Whiteness' as an immaterial value and explains how it was gradually infused in the scope of (the right to) ‘property', her line of argumentation therein applies to the racially-motived power clashes and cultural valorization schemes inherent in IP law. In fact, and as already mentioned in the previous chapter, Anjali Vats and Deidré A. Keller have employed Harris' approach to the engagement of race and property in their paper, entitled 'Critical Race IP'.549 Vats and Keller even analogized Harris' phraseology and coined the term 'Whiteness as IP 550 to refer to the racialized baselines of the domestic and international legal frameworks of IP.551 Though it may seem to be merely literary, Harris' contribution to the Critical Race IP discourse is exquisite: In light of Harris' theory, Vats and Keller reach the conclusion that '[W]hite racial identity confers not only a bundle of property rights but also intellectual property rights.'552 This dissertation, and particularly this chapter, unfolds and substantiates this argument, with the guidance of Harris' scholarly piece.

Considering that this chapter wishes not only to speak for 'Whiteness as Property' as a phrase, but also to premise its arguments on this concept, a brief explanation of Harris' scholarly piece becomes crucial. Thus, this sub-chapter offers a brief summary of Harris' articulation of the rationale behind the propertization of Whiteness and its consequences in the legal forum. Then, it offers a snapshot of the translation of Harris' conception to the particularities of IP law, by reference to Vats' and Keller's vision of 'Whiteness as IP.'554

In her renowned scholarly work, Harris mainly draws her argumentation upon the social constructionism doctrine of CRT scholarship. She promotes conceptualization of ‘property' as a social and legal construct which has traditionally covered material objects, yet extended to immaterial entities of economic value over time. 555 Unfolding this economic value, Harris refers to James Madison, who framed property as ‘everything to which a man attaches a value and have a right.”556 In line with this definition, Harris claims that ‘Whiteness' has been a valuable asset for its holders: Whereas 'Whiteness' initially referred to a color, its association with skin color and race had gradually transformed it into a status, which determined the social and legal status of its holders – and the non-White ‘others'.557 Hence, Whiteness gained a ‘property' dimension; it has grown civil and material interests within itself for the ones who 'own' Whiteness. Regarding this, Harris explains that:

"[B]eing [W]hite [in the United States] automatically ensured higher economic returns in short term, as well as greater economic, political, and social security in the long run[.] (...) [It] meant gaining access to a whole set of public and private privileges that materially and permanently guaranteed basic subsistence needs and, therefore, survival. '559

Although traditional theories on property describe the concept over its subject-matter, modern theories prioritize the function of property and the social relations reflected therein. 560 Thus, rooting her arguments in the modern readings of property as such, Harris quotes Jeremy Bentham, who claimed that ‘[p]roperty is nothing but the basis of expectation [which have been] recognized and protected [by law] as actual property.'561 Based on this, Harris claims that in a society where White superiority and racial subordination are not aberrational practices, the recognition of settled expectations of Whites by law only codifies and reinforces interests in Whiteness. 562

Perhaps the most striking aspect of Harris' analogy of Whiteness with property manifests itself in a basic tenet of the right to property: The absolute right to exclude. 563 Relying on the exclusivity of the right to property, Harris claims that each person who holds Whiteness is granted with the same set of privileges and benefits attributed to it. 564 This creates a closed-group of White people who are considered equal amongst themselves and before the laws. 565 Thus, 'Whiteness' establishes an exclusive club whose membership was closely and grudgingly guarded.' 566 Nevertheless, anyone who cannot be read as 'White' is not only excluded from legal protection, but also denied the right to Whiteness as property - which leads Harris to conclude that 'the real power and wealth never have been accessible to more than a narrowly defined ruling-elite (...). '56

To reach these conclusions, Harris brings up two case studies extracted from the racialized terrain of the American legal system: The enslavement of Black people, and the conquest of Native people's lands. These incidents help illuminate the paradigmatic construction of White and non- White races, on the one hand, and showcase the role that law played in the justification of even inhumane practices as such, on the other hand. By this way, Harris offers a prism for confronting law's modernist claims of universality, objectivity, and neutrality.

In the context of enslavement, Harris illustrates the social status of White and Black people in a stark contrast: Subjects and objects of the right to property. 568 Mapping the institutionalization of enslavement in American jurisprudence, Harris crystallizes the fact that skin color had been the indicator, to which Bell often refers, that was employed to allocate legal rights and liberties among the lines of different racial groups within the same society. 569 Though Whiteness or Blackness, either as colors or physical traits, do not necessarily evoke such an unjust distribution; the common racial imagery and meanings negotiated amongst the members of the dominant group socially construct race within an oppositional binary.570 These inventive categories of the societal knowledge and its assortments of materialistic interests had been not only justified by the American law, but also codified and ‘effectively' enforced by the American judiciary.571

Harris finds a similar pattern of appropriation, exploitation, hence, racialization of Native- Americans. Whereas it was the physical labor of Black people that Whites had grown a materialistic interest in, the White-Native relations reveal that the former had an interest in the proprietorship of Natives of their ancestral lands. 572 Also analyzed in depth by a Native-American scholar, Robert A. Williams, Jr.,573 not only the doctrines of discovery and trusteeship, but also the American case law574 ratified and legalized the conquest of Native lands. 575 Based on these, Harris asserts that the notion of ‘possession' which underpins the right to property has been deemed only to belong to White people - just like Whiteness itself.576

Harris' scholarly piece is of great importance to this dissertation. Just like the property interests in Whiteness within a constitutional law context, the property interests in IP law have also been formed according to the White structures of dominance. Even though these structures become visible in the confrontation of Western-centric IP law by folklore and TK, it is essential to keep in mind that the roots of this conundrum predate the contemporary IP diplomacy and dates back to the origins of White interests in property per se.

Complementary to Harris' arguments, Anjali Vats, in her recent publication, entitled The Color of Creatorship: Intellectual Property, Race, and the Making of Americans, claims that just like to the property regime, the IP regime is also built upon a dichotomous thinking of the American society. 577 Whereas the property regime is governed by the 'White and non-White' binary paradigm, the IP regime revolves around a 'creatorship and infringement' binary. 578 According to Vats, the latter paradigm feeds into the presumptuous values ingrained in Whiteness and Western identity, mainly because people of color have long been denied legal rights over their intellectual creations. 579 This has not only caused the disregard of Black contributions to the common imagery and culture, but it also linked concepts and aptitude of creativity and inventorship merely to White people. 580 Thus, Vats asserts that '[t]he codified racial discrimination that made [IP] Law the purview of [W]hites in the 1800s'581 persists to stand on a racial episteme which denies credits to people of color as full creators and devalues their intellectual creations - while it prevails to valorize and protect Whites' interests in IP. 582

Although both Harris and Vats elaborate primarily on the American socio-historical reality and jurisprudence, their analyses concerning the construction of 'Whiteness' and 'property' are well- aligned with the racial investments entangled with 'IP', especially given the colonial history of the Western (European) powers who have rested the foundations of the idea of IP as well as the international IP frameworks. As argued by Vats and Keller, ‘[W]hites have historically constructed information regimes in ways which devalue the knowledge and practices on non-[W]hites.' Nevertheless, a culturally-specific and value-laden IP regime as such was gradually globalized and imposed upon the non-Western hemisphere, by means of colonialism, the Westphalian perceptions of the ‘State', and the international (IP) diplomacy. As a consequence, IP law continues to ‘operate (...) protect[ing] the power of [W]hiteness and the Global North. '584