Does IP produce racialized subjects? If so, how does IP accomplish such a task and how is it complicit in contemporary and historical processes of racial formation? This plenary session will explore the notion that intellectual properties necessarily intersect with social processes of racial formation producing categories of race and racial projects. It will explore the specific means by which intellectual properties and associated legal regimes produced and continue to produce racial identities and construct racial and colonial hierarchies.
Bio-Brand in the Blacking Factory
Mechanisms of formidable biopolitical discipline, brands, as the developing scholarly literature reveals, are redefining our experiences of citizenship, community, indeed, our sense of self itself. As people and places as well as feelings and practices acquire and are assigned market value and currency, brands emerge key among the technologies of the neoliberal self, marking the coordinates at which the self is crafted but also where she crafts herself. The constitutive relations of these “bio-brands,” shaping and themselves shaped by the material relations of an emerging bio-capitalism, track fateful racial orders of kinship and care as well as precarity and abandonment, no longer merely sensible but also increasingly just and necessary. Armies of people – impoverished, certainly, but also feminized and racialized in specific ways – emerge as the surplus populations of late capital, utterly disposable and always ready for exploitation as identity emerges formidably organized as a brand formation, encamped on historical and lived terrain but also, notably, within material cultures that govern property as owned, exchanged, and coopted; conferring status, assessing risk, and easing allure as well as exclusion. Taking racialized economies of the Cadillac as its case, this paper proposes a brief historicization of the constitutive relations between race, identity, and blackness as bio-brand. Commoditizing stigma and allure, monetizing racial authenticity, and exploiting racial difference, brand iterations of blackness track formidable regimes of biopolitical manufacture, part of a “blacking factory,” if you will, that find the disciplinary operations of race and racialization at the core of technologies of the neoliberal branded self.
Trademark Mosaic: Law and Nationality in Mandate Palestine, 1921-1948
Foreign powers often imposed their laws in their colonies. Intellectual Property (IP) law was high on the British Empire’s imperial agenda in the early 20th century. This paper examines the implementation of trademark law in Mandate Palestine, which is the region composing today’s Israel and the West Bank, then under British control per a Mandate of the League of Nations (1917-48).
Building on a critical legal history analysis, which frames the introduction of trademark law in Mandate Palestine as a case of legal transplant, and on a first of its kind analysis of trademark data from the period, I examine the trademarks themselves. The paper focuses on local, pictorial marks, and searches for their religious and national over and under-tones. The premise for this exploration is that trademarks have not only a market function of identifying the origin of the goods, but that they also serve as vehicles for conveying cultural meanings. Locating the trademarks within the political context of the time and period offers a yet-unexplored perspective to observe national struggles between the growing Jewish population, the Arab population, and the local British government in Mandate Palestine. The language used and not-used in the trademarks, and religious, national and other cultural references in the trademarks reflect these struggles, and perhaps they had also helped reinforcing national positions. The findings further illustrate patterns of import and export, and how local and foreign traders engaged in an exercise of cultural imagination and self-reflection.
Law, Race, and Alchemy: Exclusive Rights, Existential Crises and Transformative Possibilities for Intellectual Properties
Intellectual property discourses are too often mired in doctrinal analyses of a would-be neutral regime ostensibly distributionally blind in its allocation of rights—and therefore impervious to the construction of the gendered and racialized subjects produced. Yet the concept of intellectual property rights, much like gender and race, is socially constructed through institutional facts that allocate power and social wealth, privileging some members of the human community over others by conferring to them the authority to exclude these others from meaning making. Such regimes are, therefore, liberty intruding, and have attendant enforcement measures that allow for private remedy but may also be reinforced through the coercive threat of state force (criminal sanction). Intellectual property rights (IPRs) are therefore political and potentially oppressive, excluding specific forms of intangible production by making legal “rights” culturally contingent on the politics of recognition, rendering the other as deviant, if not criminal. Their proprietary mappings reveal vestiges of a colonial past that perpetuate modern day hierarchies through doctrinal requirements that exclude specific subjects while simultaneously constituting them. Property has historically been alienating, and title never kind to women or racialized subjects (who have too often been the object rather than the holder of such claims). Given the colonial history of IPRs, one might expect to encounter greater critical examination of their discriminatory effect – not simply because intellectual property’s vulnerable subjects are cultural producers active in meaning making, but more fundamentally, because of the operating assumption that meaning making is only valuable (and valued) when consistent with the normative legal prescriptions of the western IP laws that reproduce dominant culture(s). Intellectual properties, then, reflect social hierarchies and carry disparate impacts of normative rules colonially constructed to subjugate the racialized and gendered subject by denying or alternatively restraining her social existence. Through a critical legal studies lens, we might observe how these properties of intellectual properties situate Law in particular relation to race and power, reinforcing the stability (and hegemony) of existing hierarchies by entrenching them institutionally. When examining the historical legal treatment of intangibles of value that are generated disproportionately by women, indigenous communities, and the “racialized” other, the examples show that, just as legal concepts of “property” have been checked for gendered, racialized, and disparate effects on disenfranchised non-title owners, so too must we examine intellectual property laws. Excluded racialized subjects are often, nevertheless, fetishized objects of study in racial projects, research, and marketing programs that seek to consolidate race as a scientific category while reinforcing the ideological force of racial identities. While rights rhetoric cannot rationalize the (disparate) allocation of rights a priori—to the exclusion of racialized and gendered categories of subjects—utilitarianism has also failed to recognize or adequately address IP’s exclusions and exclusivities. Neither theoretical rationale for our IP system can allay the existential crises that our IP protecting regimes must now confront. Herein lies the potential for alchemy, toward the necessary transformations in our governance of IPRs, for greater equality in law’s relations and, ultimately, the realization of better futures.