The alt doesn’t reject the law or the state wholesale, it remakes them from the bottom up. This isn’t a justification for the perm, because incrementalism prevents that process.

In the context of intellectual property law, decoloniality is useful in advancing critiques of the area of law’s consistent inability and refusal to recognize the full personhood, therefore creatorship and citizenship, of people of color, and building models of engagement that recognize multiverses of knowledge production, knowledge making, and indigenous wisdom, apart from their commodity value. It is also useful in thinking about policymaking as a practice of working from the bottom up instead of the top down. Deconstructing the racial logics of intellectual property law creates space for new ideas that are grounded in Otherness. Such ideas are not, by definition, emancipatory ones. However, they are prerequisites to building knowledge futures that are emancipatory.

While Mignolo sketches the importance of epistemic delinking from modernity, the specifics of his project are not always clear. Given the embeddedness of the nation-state, including its management of normative citizenship, with (neo)coloniality certainly requires moving away from inclusionary politics as a strategy for gaining full intellectual property citizenship. As Mignolo writes, “The emergence of ‘modern nation-states’ in Europe, means two things: that the state became the new central authority of imperial/colonial domination and that the ‘nation’ in Europe was mainly constituted of one ethnicity, articulated as ‘whiteness.’”30 White colonial nation-states became the arbiters of citizenship, in part through the creation of hierarchies through which they deemed themselves superior to (neo)colonial states and in part through the legal manipulation of the category itself.31 They also became arbiters of the legitimacy of knowledge, specifically who has and does not have the capacity to create.

The project of remaking intellectual property law, then, must address the centrality of the state and the centrality of whiteness in the formation of intellectual property policy and its underlying ideologies and cultural formations. This does not mean doing away with the nation-state or completely disempowering white people. Instead, it means confronting the role of the nation-state in epistemic violence and its complicity in white supremacy. Decoloniality, as a tool of a larger, interdisciplinary Critical Race IP agenda, “creates space for a complex and multifaceted engagement with race and, (neo)coloniality that addresses the fundamental historical power dynamics that shaped laws of knowledge production.”32 For instance, decolonizing intellectual property law requires undoing the state’s oligopoly on defining and enforcing conceptions of infringement and the public domain. It also requires pushing back against the implicit whiteness in state and cultural conceptions of creativity, innovation, progress, and A2K. Both of these are necessary but not sufficient for intellectual property justice.

Darrel Wanzer-Serrano writes: “Decoloniality is an alternative accent— one marked by pluriversal commitments, geo-historical attentiveness, and bio-graphical considerations.”33 In order to get to a place in the context of intellectual property law where that trio of goals is possible, anti-racist and anti-colonial activists must persuade lawmakers that knowledge production comes in a variety of forms, not of all of which comport with notions of Romantic authorship. This project is an ongoing one, though it is sometimes impeded by commitments to incrementalism, inclusion, or capitalism. Approaching such issues from the vantage point of pluriversality, historicity, and contextual specificity forces engagement with intellectual property law’s tendency to mark some people as less than human and prefigure solutions through racial capitalist lenses.

Important questions in building egalitarian copyright, patent, and trademark policies, then, include: “Whose labor is valuable? How is it valued? What systems underpin those definitions of labor? And how do we alter and remake the systems that undervalue the knowledge of people of color and maintain systems of white supremacy?”34 Storytelling, protecting traditional knowledge, and A2K are important parts of the answers to those questions, as the three case studies in chapter 4 demonstrate. But they are necessary though not sufficient solutions to the circulation of racial scripts that this book traces.

Derrick Bell argues that making visible the racial non-neutrality of law is a central part of the project of CRT. Similarly, unveiling the nexus between coloniality/modernity is a core part of the project of decolonial theory— and one that is helpful in reimagining copyright, patent, and trademark law. Making visible intellectual property law’s racial non-neutrality and investments in (neo)colonial flows of power has been a core aim of this project.

While scholars in a variety of disciplines have begun to work through the histories of intellectual property and race in particular instances, a great deal more work needs to be done in theorizing how copyrights, patents, and trademarks have played important roles in racial formation, how their racial scripts evolve and pervade public culture, in discursive and material ways, and how political economy is tied up with questions of race. Coming to grips with intellectual property law’s stubborn doctrinal and discursive resistance to creating narrative space for non-white creators and their full personhood renders legible those discourses that subtly but persistently normalize Enlightenment views of creatorship, infringement, and concomitantly race. In the United States and globally, the struggle over creating equitable intellectual property law is a struggle about the ways in which Americans imagine, feel, and commodify knowledge in intersectionally raced and (neo)colonial ways.

Reimagining intellectual property through the lens of decoloniality is also a rhetorical project, one in which a developing theory of Critical Race IP can assist. The examples of Prince’s name change, Lynch’s Beast Mode®, decolonial vernacular in the Yoga Wars, and dewesternization through the TKDL demonstrate the broad spectrum of resistive performances and practices through which people of color remake notions of creatorship, citizenship, and personhood. They also concretize decoloniality in ways that are helpful for thinking about praxis in all its material realities.

Decolonial theory posits, as a core practice of decolonization, the idea of delinking. Decolonizing intellectual property requires delinking it from the epistemological foundations of modernity/coloniality, particularly with respect to the category of creatorship and, relatedly, its articulations with citizenship and personhood. Darrel Wanzer-Serrano explains the practice of delinking decolonially as:

any practice, discursive or otherwise, that facilitates a divestment from modernity/coloniality and invents openings through which decolonial epistemics can emerge. . . . Delinking requires changes in both content and form . . . It requires being oriented toward shifts in our genealogies of thought, including drawing authority from colonized spaces/voices and resisting latent imperialisms—even when such resistance may not be exclusively oppositional.35