The plan cannot escape the epistemic hierarchies inherent to intellectual property law and will never offer equal benefits to the marginalized.

The steady march of IP regimes across the global South has not been without resistance. We see the use of countervailing strategies and the application of IP law as a legal vehicle for ‘facilitating (or thwarting) recognition of diverse contributors to social discourse’ (Sunder Citation2006). The linking of identity politics (issues of recognition) with intellectual property (issues of redistribution) highlight the efforts of individuals from marginalized communities to resist appropriation and benefit materially from their own cultural production. Intellectual property law thus becomes more than a tool for incentivizing creativity and emerges as a terrain of struggle for social relations. The language of this struggle is voiced in terms of human rights, as both the Universal Declaration for Human Rights and the International Covenant on Economic, Social, and Cultural Rights affirm the right of all peoples to be recognized for and materially benefit from their cultural creations.

However, the struggle of marginalized communities to benefit from their own production is not an even or fair one: the field is tilted. Their IP claims often do not succeed, not only because of the way the law is constructed, but equally because of their unequal bargaining capacities and resources (Sunder Citation2006). Consider how in India, Brahmin supremacy was sustained by their monopoly over education and the learning of English, and enforced by a violent system of intra – and inter-caste social restrictions and punishments (Chandra Citation2012). Even today, the upper-castes perceive themselves to be the natural inheritors of scientific research and practice in India; there is an appalling under-representation of Dalits, indigenous, and lower-caste groups in India’s leading scientific and technical institutions despite the fact they far outnumber the Brahmin minority. Access to knowledge production systems and to the markets that value this knowledge continue to be blocked by compounded access barriers. More pertinently, it is worthwhile to ask whether those long excluded from particular types of knowledge can truly be empowered upon the terrain of an alien epistemology built in tandem with social and political hierarchies whose very existence relied on scientific and moral justifications of inequality.

Intellectual property regimes purport to be neutral, but at their core, they presume gendered, racialized, epistemological hierarchies. The philosophical underpinnings of the intellectual property rights regime exhibit the binaries that characterize male-oriented epistemologies: male/female, public/private, scientific/primitive, rational/relational (Burk Citation2007). Feminist and decolonial ways of being and doing on the other hand, strive to transcend the binaries that naturalize domination and instead emphasize horizontality and mutuality. Feminist scholar Marion Crain (1857) advances an alternative vision of how women exercise power: ‘Power exercised in a community emanates horizontally, expanding outward in a web-like fashion, rather than vertically in a hierarchy (as quoted in Levy and Newman Citation2019, 119).

In the current Information Age, as forces of capital chart out new public domains from which to generate monopoly rents, human experience and behaviour itself has become the raw material for finished ‘prediction products’ in advertising marketplaces, as Shoshana Zuboff has argued (Zuboff Citation2018). Private property is an unsuitable organizing principle for society in the Information Age.

The opportunity to make meaning must be accessible to all on equal terms. In his Guerrilla Open Access Manifesto, Aaron Swartz declared that permitting those at elite universities, but not ‘children in the global South’ to access the world’s scientific and cultural heritage is ‘outrageous and unacceptable’ (Swartz Citation2008). And yet, as IP scholar James Boyle points out, much of 20th Century culture is ‘lost culture’. The inordinate tenure of copyright has ensured that copyrighted and commercially are unavailable because they have no identifiable copyright holder who could agree to ‘reprint the books, screen the films or play the songs’. Records are incomplete or absent (Boyle Citation2008, 9).

As we become aware of the power relations at play in the construction and valuation of knowledge, we should endeavour to create alternative accounts of knowledge and value, rather than simply seek to extend existing protections to disempowered groups. We must attempt to imagine an orientation towards knowledge which values the abstract and relational, and locates value in non-market forms. In other words, we must, as Audre Lorde urges us, forge new tools to dismantle the master’s house.