IPR is sexist and racist

Traditionally, IP scholarship and jurisprudence has not focused on race and gender inequality. However, these issues are receiving renewed attention in feminist scholarship and in critiques of existing power structures by those concerned with the treatment of people of color, women, and indigenous peoples in the international arena. Analytical inquiries that explore the rights of minorities, women, and indigenous peoples enhance the debate about IP reforms. Further, a focus on the least advantaged segments of society, such as blues women, shifts the debate to focus on the empowerment of artists who create, and not on empowerment of large conglomerates that control IP in the United States and abroad. Part I of this Article, briefly discusses the tenets of critical race theory to show that it can be useful in explaining how IP law has disadvantaged African-American artists and fostered their subordination. Part II explores how feminist critiques of IP benefit from examining the treatment of black women, using blues women of the 1920s as a focal point. Part III examines how the treatment of indigenous peoples parallels IP deprivations of blacks and women.

Many legal scholars increasingly recognize that the examination of race in legal discourse serves to illuminate the merits and values of the law.5 In contrast, before the 1980s, legal scholarship “virtually ignored legal theorizing based on the perspectives of people of color.”6 The invisibility of race in legal discourse changed with the advent of critical race theory (“CRT”) in the late 1980s, following the development of feminist legal theory in the prior decade. Critical race theory is not a unified construct, but it does set forth four core tenets.7 First, it posits that “race and racism are endemic to the American normative order.”8 Second, it posits that legal structures are “part of the social fabric . . . [which] constructs and produces race and race relations . . . [in support of] white supremacy.”9 Third, it contends that the construct of “colorblindness” in legal jurisprudence “ignores and cements the racial caste system constructed in part by law,” and thus perpetuates inequality for subordinated groups.10 Finally, CRT proponents advocate that “[legal scholars should be] working toward a norm of ‘racial equality’ where different groups will not continue to suffer the oppression and subordination they have suffered.”11