Blurry Lines: The Complex Intersection of Race & Intellectual Property

By Neil Turkewitz

Neil Turkewitz
The Shadow


Photo ©2021 Neil Turkewitz

A few weeks ago, Anjali Vats, Associate Professor of Communication and African and African Diaspora Studies at Boston College, tweeted that her book, “The Color of Creatorship,” was available for sale. In her tweet, she wrote that “In it, I argue that intellectual property is built on racial scripts and citizenship discourses that continue to disadvantage people of color in knowledge ownership.” I thought it would be interesting to compose a long form “tweet review” to explore some of the implications of this one complex sentence. I highlight that this is not a review of her book — a book that I have not yet had the opportunity to read, and nothing in this piece should be construed as suggesting that there is, or is not, any distance between our respective views. Perhaps there is, perhaps not. But in part because a tweet has a life separate and apart from a book, and because her tweet on its own posed such an important point, I thought it would be useful to engage in preliminary dialogue. I have long argued for the need to contextualize copyright within the broader political, economic and cultural milieu in which it operates, and appreciate this opportunity to explore these intersections. The issues of how copyright relates to issues of race and personal empowerment have not received the attention they deserve, and I really appreciate Professor Vats and others bringing these issues to the fore.

I think the best place to begin is to note my agreement with Professor Vats that intellectual property is indeed based on racial scripts. How could it not be? Race, class and power are all reified and reflected in the positive expression of our normative structures, so why would intellectual property be an exception to that? It isn’t. It’s that simple. But the broader implications of her statement are anything but simple. In particular, observing that intellectual property norms rest on “racial scripts” is an extremely important place to begin a journey, but it doesn’t represent an observation unique to intellectual property. Accepting, as I do, that current norms reflect disparities in power and influence that largely align with race, our job should be to carefully examine which particular aspects of our intellectual property rights systems pose such disadvantages, and to work to dismantle them.

In the copyright arena, it’s not hard to identify the most obvious place where racial scripts have affected the contours of protection. Indeed, the central premise of copyright is that protection only attaches to works which have been fixed, which have an identifiable author, and which embodies an original expression unique to the author. These elements — fixation, authorship and originality, reflect western traditions and are poorly suited to communal authorship by various non-specific individuals, or by cultural production through non-written story-telling. This divergence has clear racial roots, and continuing racial consequences. This lacunae is well known, and work on a possible treaty for the protection of folklore/traditional cultural expressions has been ongoing at WIPO for many years, although parties still struggle to adequately define the object of protection and the ownership thereof even after many years of study and deliberation.

The issues of fixation, authorship and originality are also reflected in US law — both in general by denying protection to unfixed live performances, and in historical (but now amended) registration practices for music in which only the written composition was allowed as proof of the scope of a composition and its ownership. This issue arose quite publicly in the Blurred Lines case. In a beautifully written piece that. appeared in the Seattle Times, Professors Lateef Mtima, Sean O’Connor and Lita Rosario wrote: “The older focus on literal melodic copying systematically disfavored artists of color. Relying on this presumed exclusion of harmonic and rhythmic elements, record companies perennially promoted white artists from Elvis Presley to Iggy Azalea who could perform songs imitating artistic innovations of black artists. Many copyright experts have been content to live with this system, so long as marginalized artists of color were the ones to suffer the inequity.

This underscores that, as Professor Vats has observed, intellectual property standards are built on racial scripts, and that such gaps can — and frequently do — operate to deny ownership on the basis of race, or at least in a manner largely aligned with race. But the point I want to stress is that whether in the halls of WIPO, national capitals around the world seeking to address protection of folklore/traditional cultural expression, or as reflected in the Blurred Lines case, the relevant “racial script” that operates to the disadvantage of people of color relates to limitations on the scope of protection, and not to an excess thereof. This is not to suggest that issues of access and use do not pose special challenges for communities of color — only to highlight that an accurate narrative concerning race and intellectual property is complex, and involves, in large part, the failure to provide adequate protection to cultural productions.

Professor Vats was quite careful in her tweet to note that racial scripts “disadvantage people of color in knowledge ownership,” rather than suggesting that they disadvantage people of color in access to knowledge. Perhaps I am placing too much reliance on this careful wording, but it is an exceptionally important distinction. While people of color may face issues that affect access to, or use of, works protected by copyright, it is of vital importance to recognize that the relevant issues are not limited to issues of access — and that the failure to extend protection to certain forms of cultural production, either de jure through the application of legal constructs, or de facto by making enforcement of rights too cumbersome and costly, are fundamental in addressing the intellectual property issues affecting non-white communities.

Given the the frequently inflammatory and oversimplified debates about copyright — indeed, discussions (sic) which are frequently referred to as the “Copyright Wars,” I fear that there are too many people who may treat Professor Vats’ observation as an indictment of copyright, rather than as an indictment of the present limitations of its scope, and of legacy industry practices based on exploitative practices which in too many cases are also aligned with race. I’m not sure what Professor Vats will argue in her book, but I highlight that she has, in her tweet, properly observed that the negative consequences flow from failure to extend rights to non-western forms of expression rather than as an undue limitation on access. I hope this complexity will inform and be reflected in this important discussion.

The potential of copyright to expand the interests of the Black creative community was perfectly captured by Professor Mtima in a piece he penned about the CASE Act — a provision of law recently adopted to create a small-claims court for copyright violations. Mtima wrote: “For a large segment of the creative community, copyright protection is a lot like McDonald’s was for Harlem kids in the 1960s — close enough to get our attention, but too far beyond our reach to mean anything.

Or his observations in relation to the importance of choreographer Jaquel Knight seeking copyright for dance: “On a cultural level, it could be paradigm-shifting. “There’s a notion throughout much of the Black community that the law can only be used as a tool to exploit people…that copyright is inherently racist and biased,” says Howard University’s Mtima. “And that’s just not true.”

I have already gone longer than was my intent in responding to a tweet, so I’ll wrap up quickly, particularly inasmuch as I really only had a simple point to convey — that intellectual property is indeed “built on racial scripts.” IP norms are part of the normative universe — all parts of which are influenced by racial scripts. IP didn’t magically escape that. But copyright plays an important role in promoting economic development & cultural diversity. As I noted in a recent open letter to UNESCO which itself largely recites comments I had filed with the UN Special Rapporteur in the Field of Cultural Rights in 2014:

“Make no mistake — cultural hegemony flows not from the protection of intellectual property, but from its absence…An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator — is central to a society’s ability to foster cultural production. In its absence, dreams and creative lives perish. The moral and economic aspects of this equation are inseparable. We simply must ensure that all creators, regardless of their location, are able to enjoy the fundamental human right to choose the manner in which their creations are used as reflected in international law…By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself.”

Or, as stated much more succinctly by Bankole Sodipo, a founding member of the Africa IP Group (AIPG) and professor of law at Babcock University in Nigeria at a regional workshop held in Dar es Salaam: “Today, more than ever, Africans whether living on Africa soil or in the Diaspora need to network to nurture our intellectual property. We need to share experiences, to evaluate and consider how we can promote our culture, our creative industries, our innovation and our investments and ensure that intellectual property becomes a tool for African economic emancipation.

To advance the interests of societies around the globe, it is essential that we generate a greater understanding of the role of intellectual property as a tool for economic emancipation, a catalyst for cultural diversity, and a powerful protector of individual dignity and fundamental human rights, and that — as wisely highlighted by Professor Vats, we pay close attention to how issues of race shape, and are shaped by, our present constructions.

Postscript: As I was about to post this, I came across a recent article by Maureen Fondo, Head of Copyright and Related Rights, African Regional Intellectual Property Organization (ARIPO). It is so on point that I include a short excerpt and a link thereto:

Africa is very rich in copyright, but it is yet to realize the full potential and power of the industry. Many African countries are yet to know and appreciate the value of copyright to their economies. However, the world has shifted to the knowledge economy, of which IP is the main driving force. Like other IP rights, copyright is a source of intellectual capital that can be used to spur economic growth.”