Critical Race IP

Abstract

In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we articulate the provisional boundaries and core ideological commitments that define Critical Race IP, particularly in contrast with Critical Intellectual Property. After exploring the landscape of this developing area of study through its central themes, we draw upon scholarship on public feelings to demonstrate the importance of community building and intimacy-making practices in the growth of Critical Race IP. Public feelings are an implicit and often under-theorized aspect of intellectual property law that comes to the forefront in engagements with race and colonialism. We conclude with a discussion of Critical Race IP as decolonizing praxis that can aid in anti-racist and anti-colonial struggles.

Keywords: intellectual property, race, copyright, trademark, patent, right of publicity, trade secrets, decoloniality