We asked our plenary speakers to send in their thoughts on any three of the following five questions.

Why does IP law require a critical race lens today?
How do you hope to advance the discourse of race and IP through your work?
How does your work contribute to re-imagining IP in the twenty first century?
How do you anticipate IP law shaping or modifying the behaviors of creators and inventors in the next 10 years?
What are the global opportunities and challenges that emerge at the intersection of critical race and IP?

Why does IP law require a critical race lens today?

IP has always required a critical race lens, though it has not always demanded as much so explicitly and foundationally as it does today. As we become increasingly sensitized to the legal and political manifestations of racism, we look for it in places that may be harder to detect. IP law is not immune from scrutiny, though it may require more deliberate effort to unmask any disparate impact cloaked in the ostensible neutrality of laws rationalized and premised on consumer protection, or rights inhering from one’s labor or genius, or cohering with a concept of “progress” – whatever that may be – as a social and public good.

Anyone critically interested in law as a social construct, as the normative mechanism by which social relations of hierarchy are entrenched and reinforced, must necessarily be interested in law’s oppressive and disenfranchising effects on the one end and its emancipating and transformative possibilities on the other. Realizing that there is nothing essential about legal norms on either extreme can be incredibly empowering. In so far as existing social relations are not equal but entrenched in institutions that are similarly situated, laws that appear gender and race neutral need to be examined for their discriminatory effects before they can be changed. Like property, intellectual property is about the social allocation of wealth and resources through the designation of institutional facts (rights), the conditions under which they will arise, and the coercive means by which they may be enforced. IPRs allocate power and so have the capacity to perpetuate social inequalities, to include or conversely exclude and criminalize various subjects and entire communities, and are thereby instrumental to wellbeing, welfare gains and losses, and, ultimately, to citizenship.

How can educators advance the discourse of race and IP through their work?

As academics, we lead a privileged life that typically oscillates between the quiet solitude of independent research and writing, and the opportunity to test new ideas in discursive community with our students and colleagues (and at delightfully dedicated conferences like the Race + IP!). Teaching intellectual property law ought to reflect some degree of the growing critical research and writing in the field. It allows for the opportunity to engage in a discussion of the social dynamics that underlie the normative impulses of the law towards the exclusion of the other. Yet, these discussions are often rendered too “fringe” to be taught within doctrinal IP courses that, whether by demand or design (or simple expediency), tend to focus on generating a solid informational understanding of the law descriptively rather than a critical relational understanding of law normatively.

Law somehow manages to remain relatively above the fray of politics in IP. To the extent that IP is politicized, it is in the balance between owner and user rights, the commercial and the personal, the private and public interests at stake, rather than the consequences of rights allocations a priori for existing vulnerable subjects of IP. Critical legal and cultural studies scholarship is comfortable with exploring the fringe and seeks to mainstream legal critiques of power towards meaningful law and policy reform. It is worth noting that the problems that manifest, though institutional, are not just in terms of hierarchies implicit in the law but in the politics and paucity of diversity representation in legal educational institutions (as well as the bar, the bench, and parliaments), where knowledge is (re) produced and translated. So, while critiquing IP instruments, we need to extend these critiques to the institutions that advance legal thinking, demanding that they be more inclusively diverse, representative, and egalitarian.

How does your work contribute to re-imagining IP in the twenty first century?

Time can only tell! My work explores the underlying tensions in the law arising from the exclusivity of the exclusive rights that IP regimes confer. My intention is to advance critical thinking towards more equitable institutions and relations. The philosophical question of why authorship should give rise to property rights, for example, begs the antecedent critical question of what does the law recognize as authorship per se? I have argued elsewhere that copyright law distinguishes between authors in fact and authors in law. Not all expression is rewarded with property and that which is seems to carry discriminatory effect. The examples are plenty; consider oral works and folklore or certain (racialized and gendered) categories of works, such as dance and craftwork. Patent law is similarly exclusive leading to intractable issues with the legal and cultural interests in protecting traditional knowledge associated with plant genetic resources; intractable because the patent regime was never designed to protect such intangibles and has operated, in many instances, to allow for, if not sanction, their extraction. The use of the term “biopiracy” to characterize these appropriations may be polemic but functionally serves to secure the political attention these issues deserve nationally and internationally. All scholarship, to some extent seeks to proselytize and persuade the reader by imagining better futures. My current work’s purpose is to do so through an intersectional critical lens; gender and race should not become isolating tools of identity politics.