On 13 October 2021, Dr. Anjali Vats, Associate Professor of Law at the University of Pittsburgh, Pennsylvania, USA, delivered the first CREATe public lecture of the autumn term 2021 series, entitled “Intellectual Property Citizenship and American Racial Imaginaries”. The lecture was hosted online due to COVID-19 lockdown restrictions, with Dr. Elena Cooper as chair and discussant.
In this illuminating public lecture, Dr. Vats shared some insights of her recently published book with title “The Color of Creatorship: Intellectual Property, Race, and the Making of Americans” by Stanford University Press in 2020.
What Critical Race Theory Is and How Can It Be Utilized in Intellectual Property Law?
The first part of Dr. Vats’ lecture dealt with critical race theory and how it can be employed in the context of intellectual property law. Before, however, getting to know how to utilize critical race theory into intellectual property law, one more preliminary question needs an answer: what is critical race theory?
Critical race theory, Dr. Vats explained, has been traditionally preoccupied with two foundational questions. Firstly, it attempts to trace the continuing lives of the notion of “race” in ostensibly race neutral legislation. At a second level, it asks how remnants and traces of race embedded in legislation can be undone. Critical race theory, Dr. Vats added, is more than just a simple methodological or theoretical approach. On the contrary, it is a way of seeing and comprehending the world. Embracing the lens of critical race theory provides the possibility to identify existing problems in ostensible race neutral legislation, to proceed in affirmative action in order to ameliorate those ramifications and to fulfill its progressive promises. Critical race theory, hence, becomes a tool for intellectual property law to see what is lying underneath the slight facet of neutral legislation.
Critical race theory must not, however, be interpreted as a monolithic method and theory; conversely it entails a plurality of means and methods. In trying to apply critical race theory, Dr. Anjali Vats adopted an approach which moves beyond the traditional suspects of undertaking research and utilized a gamut of approaches spanning from rhetorical analysis to legal and cultural histories and archival research.
A Racial History of U.S. Intellectual Property Law
Dr. Vats introduced the term of “intellectual property citizenship” which “describes the seemingly permanent nexus of copyright, patent and trademark law and citizenship, a concept that necessarily implicates race, coloniality, racial capitalism and personhood”. What Vats argued is that U.S. intellectual property law is anything but neutral. The latter is inextricably connected with the notion of race.
That observation marks the starting point for narrating certain stories which might not be overt from the very start. However, if one changes angle, other histories might start to unfold; other narratives previously remaining in obscurity can be brought into light.
Previous readings of relevant case law, according to Vats, offer only a partial picture; a picture which misses events of the broader trajectory. Dr. Vats instead argued for a chronological division of this broader trajectory into three eras of racial creatorship. The latter shall not be interpreted as clear-cut time periods, but rather as responding to more general trends. The three eras are the following: 1) the Citizenship Creatorship Era, 2) the Race Liberal Creatorship Era and 3) the Post-Racial Creatorship Era.
In substantiating this scheme, Dr. Vats embraced a comprehensive understanding of intellectual property law. Starting firstly with copyright law, she suggested that the criterion of “true imagination” maintained a role which excluded races other than people of white color such as people of black color and minorities such as those of Mexican and Chinese heritage. Reflecting on a number of cases – over a period of more than 200 years starting in the eighteenth century – Vats aptly illustrated how thinking and talking about the notion of “true imagination” in reality replicates and reproduces bias of the “Other”. Such bias dates back to Thomas Jefferson’s assertion about black peoples’ lack of imagination.
Turning next to patent law, Dr. Vats organized the chapter based on the notion of “human progress”. For people of color, she argued, a claim for creativity is much more difficult. Indigenous peoples and people other than of white color too have been treated in an anthropological perspective. Once more, Dr. Vats indicated how specific cases mirror such an understanding. In concluding her exposition, Dr. Vats suggested that trademark law marks no exception. Conversely, she suggested that a white consumer gaze pervades. That is evident in racist trademarks and the treatment of Asian people and people of other color.
The last part of Dr. Vats’ presentation attempted to provide a more practical approach. It strived to answer what can be done for the practical implementation of those ideas. Dr. Vats identified four possible ways to achieve this: 1) ethically, 2) judicially, 3) legislatively and 4) performatively.
An interesting discussion followed. Dr. Elena Cooper wondered whether the narrative of race and citizenship in the U.S. context, as presented by Dr. Vats, was specific to the domestic history of US intellectual property law. Dr. Vats, in response, suggested that her work is a framework both for asking questions and tracing similarities. Dr. Cooper also asked to what extent the U.S. Chase Act (1891) weakens the argument of historic racial traces of U.S. intellectual property law. Dr. Vats indicated that the Chase Act 1891 shall be seen as part of the larger parcel of race negotiation.
Several interesting questions followed by Ph.D. and LL.M students. Queries emphasized on the implementation of race neutral legislation. Other questions asked how racial traces can be undone. Dr. Vats highlighted that the first thing that needs to be done is to identify where we stand. That is the starting point to remedy the situation. She indicated, however, some ways to challenge racial traces of intellectual property law. Legislation, policy approaches but also litigation and race literacy and awareness are some of the options she underlined.
Dr. Cooper ended the public lecture posing a rhetorical question. She wondered how different US intellectual property law rulings might be, if they were re-written free from racial bias, using the example of the Scottish Feminist Judgments project as a potential source of inspiration. Such a project would complement well the historic Ned Project led by Prof. Kara Swanson at Northeastern University, USA.