It was upon taking an Intellectual Property course during my time at university that I had a specific idea of the type of job I desired, within the field I knew I was interested in. My interest was piqued from the onset by the several intricacies that exist within Canadian law; learning about the intersection between IP law and how it is used in practice only further increased my inclination to launch my career into IP. Trademark and copyright in particular stood out to me as key aspects of some of the complex issues that I envision myself working with. Our IP system works to solve several issues brought up by creativity and innovation, but no system is without some form of shortcoming. Below, let us examine the ways in which the IP system has succeeded, some of the biases it hosts, and lastly, a proposed solution to bias within international IP.
Our current international IP system is a vast and intricate arrangement of treaties and laws that have been established over centuries; from which a large majority of states agree to sign the conditions of independently for international IP protections, among other benefits. However, protection is not the only issue which manifests itself as a result of international innovation from different racial and social groups; in my opinion, the equality of opportunity to be afforded these rights should be a leading characteristic of our IP system. By the same extension, I would argue that the need for progressive, modern change within the system that the international IP community has created should be essential as an asset in the interest of countering issues rooted in bias, in tandem with the creation of the system itself. Accordingly, I would like to examine in-depth certain key disadvantages and critiques which are embedded in our current IP system that illustrate the true lack of impartialness within it; focusing on the aspects of trademark which are affected in particular. Trademarks are a specific area of emphasis within IP that are able to clearly demonstrate the biases that are contained within it as a result of its focus being on the distinction of goods and services in respective markets. The following critiques which I will argue incorporate (1) the intersection of trademark and Critical Race Theory’s assertion of racism within legal structures of Western society, and (2) how trademark laws negatively affect Indigenous & First Nations innovators with its determination of what can and cannot be trademark registered. Finally, I will be examining some actions that I would consider to be the bare minimum, from which IP precedent may properly be allowed to be further established from in the best interest of all.
We begin with a broad account of the bias within IP as a whole from Richard Stallman. He states that “[t]he term suggests thinking about [types of IP] by analogy with property rights for physical rights,” (Stallman, 2018) and my analysis contends that this was not the intended case for IP. Conversely, Stallman argues that the use of the term, intellectual property, encourages legislators to change its meaning in the interest of affording themselves and other owners with biased protections over more demanding rights. (Stallman, 2018) Although the need for an international IP system partly arose from the issues that presented themselves through unfairness and bias on the global scale, my research has indicated that the system does a moderate job of solving these particular issues but does not focus on others that are present within it. For instance, the WIPO presented a solution to the issues that were manifested by the mass-copying of books and other content in countries that had not signed onto the appropriate international treaties, through its international recognition of the Berne Convention. (WIPO, 1886) However, a Critical Race Theory’s account of the Berne Convention’s laws reveals its lack of material that recognizes or counters unfairness on the basis of race. CRT in particular emphasizes the unfair use of legal structures that are able to construct and produce race relations and white supremacy within the system. (Bannerman, lecture 3) If we as a community are unable to recognize and address the problems originating from creating the system from a particular position of authority concerning race, then the corresponding issues that manifest as a result will not be solved, which in turn ultimately creates our current IP system. It accomplishes some certain tasks which are very valuable in the perspective of the international community and legislators Stallman speaks to, but yet holds racial prejudice. The consequent issue that manifests from this imbalance towards trademark law is made evident through the use of Black Artistic Exploitation described by K. J. Greene in relation to Bessie Smith, a popular blues artist from the 1930s. In addition to Stallman’s idea that legislators have turned trademark into a scheme that provides incentives for advertisement, (Stallman, 2018) Greene expands on this school of thought by examining the details of Bessie Smith’s lawsuit case in 1979, which sought out redress for exploitation on the grounds of being an underpaid artist. Contrarily, the judge of the case stated that $1,500 – 2,000 per week was a staggering amount of money to earn for a black woman in the 1920s. (Greene, 2008) The judge’s response indicates that Bessie Smith as a black woman should not be complaining about exploitation, which assists in illustrating a racial bias, particularly in relation to the exposure through trademark that other groups of artists in this field are able to receive. This also maintains the ability to affect how distinct and unique black artists’ cultural IP production are able to be in comparison to the uniqueness of others in their respective markets.
Certain features and symbols cannot be registered under trademark law. (Murray & Troscow, 2013) Indistinct art portraits, mis-descriptive trademarks, family arms/crests, country flags, and names of international organizations are some examples of items that are not to be protected under trademark law. However, a closer analysis of how we have arrived upon what not to allow within trademark law in this fashion reveals that the IP system does, in fact, hold inherent bias. It favours certain modes of cultural IP production more than others, which is highlighted by the uses of what can and cannot be trademarked. (Bannerman, lecture 9) The significance of family crests, for instance, not being allowed to be protectable under trademark law illustrates that legislators comprehend the importance behind not allowing it to be trademarked. Unfortunately, First Nations & Indigenous modes of cultural IP production are not understood the same way from a Western perspective, which leads to less protections that owners of these IPs are able to possess. This has resulted in traditional knowledge from First Nations & Indigenous groups recurrently being used or appropriated without permission, which undermines the effort and history behind the respective traditional knowledge placed within their IP. The Assembly of First Nations Canada, speaking on behalf of the First Nations, explains that they should not have to be ‘bribing’ companies by method of Western alterations/modifications to their cultural modes of IP so that are able to be protected by trademark. (Assembly of First Nations, 2010) Furthermore, the issue of theft of Traditional Knowledge within the international treaties that countries are currently signed onto remain present as a disadvantage for First Nations & Indigenous groups. The ‘right of priority’ within the TRIPS Agreement is responsible for allowing patent holders of one instance of TK to seek patents in other countries that agree to its conditions. This can be used for the theft of TK in multiple countries; the Assembly of First Nations Canada gives the example that someone may decide to file for a patent of TK that they have picked up from Canada in a country with looser laws, then use their right of priority to extend their ownership over that TK internationally, including into Canadian borders. (Assembly of First Nations, 2013)
In the interest of establishing a response from the international IP community that counters such biases against disadvantaged groups within trademark, two main courses of action should be instituted. My first critique of the system is that by not accepting the bias that is inherent, it also does not outline the position of authority that it is advantaged with. As a counter to this, I would argue in favour of altering the TRIPS Agreement to write in the acknowledgement of white/Western advantages that it has been afforded; and instruct that moving forward, black, Indigenous, and other groups’ cultural modes of IP that have been disadvantaged shall also be afforded these privileges in the same manner. I believe that we cannot move forward with change in our IP system until it is formally acknowledged on an international level that bias has existed within it. By the same token, I would argue that establishing new sections of the TRIPS Agreement based on historically less protected forms of IP from a top-down approach is necessary to ensure that change actually does occur. I suspect that this second critique that assists in countering the current bias within the IP system may only transpire only once it has been established on an international level that such biases exist; accordingly, this may require some time and outreach ability to maximize the diversity of voices being heard. Nonetheless, instituting sections perhaps every 25 years to update the TRIPS Agreement so that it remains equal to all is of the utmost importance, in my opinion, so that all forms of IP are able to be afforded their appropriate protections.
In conclusion, although our current IP system works to solve some issues that are manifested by global innovation, the examples above demonstrate on a core level that bias towards disadvantaged groups clearly exists. The various issues that are manifested by the desire for original creativity when applied to a realistic global scale, which includes millions of innovators, clearly illustrates a need for such a system to be in place. Nonetheless, the presence of the system alone does not remove or alter the disadvantages that it exposes itself to. It is instead up to the international IP community to acknowledge and counter such issues as they arise; or, the alternative would be to maintain an IP system that also presents multiple unfair biases, which I unfortunately have found to be the case through my analysis of lectures and independent research. Analysis of the dominant Western power relations at play illustrate how black and Indigenous groups’ cultural modes of production have not been held to the same standard or degree, in terms of protections it can be allowed to be afforded. If we are able to both acknowledge and institute changes that counter these issues on the basis of disadvantaged groups in treaties such as the TRIPS Agreement, that may be our first set of steps in the direction of ensuring the equal opportunity of various racial and social groups to be able to protect their IP.
References
Assembly of First Nations. “Aboriginal Traditional Knowledge and Intellectual Property Rights.” 2010, http://www.afn.ca/uploads/files/env/atk_and_ip_considerations.pdf.
Bannerman, Sara. “Justifying and Critiquing IP & What Can’t be Trademark Registered.” Lecture 3 & 9, 2020.
Greene, K. J. “Black Cultural Production, and the Debate Over African-American Reparations.” 2008, http://www.cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2025/Issue%203/Greene.pdf.
Murray, Laura Jane, and Samuel E. Trosow. Canadian Copyright: A Citizen’s Guide. Between the Lines, 2013.
Stallman, Richard. “Did You Say ‘Intellectual Property’? It’s a Seductive Mirage.” Free Software Foundation, 2018, http://www.gnu.org/philosophy/not-ipr.en.html.
“Summary of the Berne Convention for the Protection of Literary and Artistic Works.” World Intellectual Property Organization, 1886, http://www.wipo.int/treaties/en/ip/berne/summary_berne.html.
Jeruson J., ARCHIVED. 