The following article is the first of a three-part series. An abbreviated version of this article originally appeared in the Sept./Oct. 2012 issue of IAM Magazine.
As a first-generation American whose parents emigrated from Haiti, the poorest country in the Western hemisphere, the Civil Rights movement has always interested me. In fact, my mother always dreamed that her Ivy League-educated, lawyer son would become a civil rights lawyer. I am, however, an Intellectual Property (IP) lawyer. That is, I deal with the patent, copyright, trademark and trade secret laws for clients who are mostly in the electronics, software, financial services and e-commerce fields. This is not exactly the job description of an NAACP attorney.
In an aim not to disappoint my mother, however, I’ve always argued to her as follows: “The civil rights movement was really about fighting for the economic rights of Black Americans – the right to equal pay, the right to spend their money anywhere they wish, etc. In the 21st century innovation-led world, economic rights are all about IP rights. How so? Well, less than 5% of American workers are now employed in manufacturing. America is becoming very much a white-collar society, the outputs of which are intangibles protectable by IP rights. That is how we Americans measure wealth and that is how I can help fellow Black Americans.” A skeptical “hmm,” is how she always replied. Well, after really examining the current state of affairs, I too am starting to become skeptical of my own argument! But should I be?
Many may initially wonder what IP has to do with civil rights. After all, IP rights (IPR) have always been understood in terms of individual economic incentives for creating society-wide public good in the form of cultural works, like art and music, and scientific knowledge such as medicines. The interrelationship initially seems odd because, regardless of political leanings, many are turned off by any mention or use of identity politics. Yet, as one leading scholar observed, “we cannot understand intellectual property today without recognizing the identity struggles embedded within it. Intellectual property’s convergence with identity politics reveals links between cultural representation and development, which traditional economic analyses of intellectual property overlook.” Thus, I ask should IPR be the new focal point of the civil rights movement in America?
To understand a discussion of IP rights, innovation and Blacks, some historical perspective is first needed. The genesis of Black American history in the United States begins, unfortunately, with slavery. Racism, the by-product of slavery, has fostered a belief by Whites that Blacks are intellectually inferior beings. This belief is well documented. For example, Arnold J. Toynbee, one of the western world’s leading historians once wrote: “When we classify mankind by color, the only one of the primary races . . . which has not made a creative contribution to nay of our . . . civilizations is the black race.” David Hume, considered to be among the world’s greatest philosophers, once wrote that, “I am apt to suspect the Negroes . . . to be naturally inferior to the whites. There never was a civilized nation of any other complexion than white, or even any individual eminent either in action or speculation, no ingenious manufacturers among them, no art, no sciences.”
The falsity of these views is obvious as the creative genius of Black writers, artists and inventors cannot seriously be denied. Even Thomas Jefferson – America’s first patent commissioner, third president and a slave owner – recognized that Blacks are indeed beings capable of great intellectual achievement. In 1791, he wrote “nature has given our Black brethren, talents equal to those of other colours of man—and that the appearance of want of them is owing merely to the degraded condition of their existence both in Africa and America.”
Ironically, early attitudes about the lack of intellectual prowess of Blacks did not prevent the Confederate States of America from passing the following law in 1861:
That in case the original inventor or discoverer of the art, machine or improvement for which a patent is solicited is a slave, the master of such slave may take an oath that the said slave was the original inventor; and on complying with the requisites of the law, shall receive a patent for said discovery or invention, and have all the rights to which a patentee is entitled by law.
Despite this open recognition of slaves’ ability to invent, this Confederate-era patent law provision is unfortunately par for the course. “The misappropriation of the work of Black artists and inventors reflects the systemic subordination based on race that characterized most of U.S. history.”
Yet, on July 23, 1872, Elijah McCoy, son of Kentucky runaway slaves, received United States Patent No. 129,843 for an improved steam engine lubricator. This revolutionary invention allowed steam engines and other machinery to be lubricated while still in motion, thereby reducing costly maintenance shut-downs. The lubricator was sold by McCoy, then based in Michigan, under his brand name. Soon, competitors began offering imitations of McCoy’s lubricator. These imitations were inferior, leading many consumers to ask: “Is this the real McCoy?” Today, the expression “the real McCoy” remains ingrained in our lexicon and used when requesting “the real thing,” or wanting to know “the real story.”
Against this historical backdrop, we can look to the convergence of IP with identity politics in assessing the current state of affairs.
Introduction to Gaps and Divides
Many stories in the popular press, and even our political lexicon, are filled with statistics and analysis of certain “gaps” or “divides” that measure the opportunity (or lack thereof) that certain populations have for economic success. For example, the “digital divide” measures the difference between minority households and white households when it comes to access to the Internet. Specifically, while a 2011 McKinsey report credits the Internet with being responsible for 21% of the economic growth in developed nations over the last five years – more than agriculture, mining and energy – over 45% of Black households in America have no Internet access, compared to just 28% of White households.
Another often-mentioned divide is the “education gap,” which measures the difference between the level of academic achievement between minorities and Whites. More specifically, White children are twice as likely to receive a degree from a post-secondary institution than Black children, as 84% of elementary school-aged Black children cannot read or do math at their proper grade level. In 2009, the dropout rate – meaning the percentage of 16-24 year olds who have not earned a high school diploma or an equivalency certificate – was 5.2% for Whites as compared to 9.3% for Blacks. (Some non-governmental reports measure the Black dropout rate at 50%!) Also in 2009, the share of science and engineering bachelor’s degrees awarded to Blacks was 8.6% as compared to 65.5% for Whites. When considering science and engineering doctorate degrees awarded to U.S. citizens in 2008, less than 5% were awarded to Blacks, compared to over 75% awarded to Whites.
Lastly, there is the “wealth gap.” Put simply, according to the Economic Policy Institute, in 2009, the median net worth for white American households was US$97,860, compared to the median black household’s net worth of US$2,170. This roughly means that for every dollar of wealth the average white household had, black households only had two cents. This measure, while sobering, is not surprising. This is because given an educational gap and a divide in access to essential tools such as the Internet, Black children simply start from behind, and stay behind during their lifetimes.
Given the digital divide, the education gap and the wealth gap, it is not surprising there is an overall opportunity gap for Blacks who make up at least 13% of America’s estimated population of 309 million people. Why? Well, in the last thirty years, there has been a shift from a labor economy to a knowledge economy. Consequently, intangible assets (with IPR being chief among them) have emerged as the most powerful asset class, overtaking more traditional capital assets such as real estate, plant and equipment. One study, for example, has placed the valuation of U.S. corporations included in the S&P 500® Index as coming 80% from intangibles (such as IP). In fact, one scholar noted as far back as 1992 that “IP rights – especially those in the form of patents – will represent the most significant form of wealth in the new millennium.”
Thus, if the civil rights movement is to continue – a movement that was about righting economic disparities – focusing on IP as the 21st century economic rights makes sense.
In the next installment of this three-part series, I will discuss the “Innovation Gap,” which is the disparity between classes of people caused by societal hindrances and which prevents groups of people from securing the IP rights necessary to economically exploit the fruits of their creativity. Stay tuned!
 Madhavi Sunder, IP3, 59 Stan. L. Rev. 257, 262 (2006).
 Arnold J. Toynbee, The Study of History (1934), Vol. 1 at p.233.
 David Hume, Of National Character (1753), reprinted in The Philosophical Works of David Hume, Volume III (Bristol: Thoemmes Press, 1996) at p.228.
 Thomas Jefferson, Letter to Benjamin Banneker (Aug. 30, 1791) (available at http://www.loc.gov/exhibits/jefferson/79.html).
 James M. Matthews, editor, The Statutes at Large of the Provisional Government of the Confederate States of America, Sess. II, Chp. 46, Sec. 50 (1861) at p.148 (emphasis added).
 Kevin J. Greene, Stealing the Blues: Does Intellectual Property Appropriation Belong in the Debate Over African-American Reparations?, Thomas Jefferson School of Law Public Law Research Paper No. 05-03 (2005).
 See Charlie White, Digital Divide: If You’re Reading This, You’re One of the Lucky Ones, Mashable.com (Feb. 5, 2012) (available at http://mashable.com/2012/02/05/digital-divide-infographic/).
 Inst. for Higher Education Policy, Promise Lost: College-Qualified Students Who Don’t Enroll in College (2008) at p.14 (summary graphic available at http://awesome.good.is/transparency/web/1105/opportunitygap/flat.html).
 U.S. Department of Education, National Center for Education Statistics, The Condition of Education 2011 (Fast Facts available at http://nces.ed.gov/fastfacts/display.asp?id=16).
 U.S. Department of Education, National Center for Education Statistics, Science and Engineering Indicators 2012 (available at http://www.nsf.gov/statistics/seind12/c2/c2s2.htm).
 National Science Foundation, Numbers of U.S. Doctorates Awarded Rise for Sixth Year, but Growth Slower (Nov. 2009) (available at http://www.nsf.gov/statistics/infbrief/nsf10308/#tab2).
 See Jesse Washington, Black Economic Gains Reversed in Great Recession, USA Today (July 9, 2011) (available at http://www.usatoday.com/money/economy/2011-07-09-black-unemployment-recession_n.htm).
 See Ocean Tomo, http://www.oceantomo.com/productsandservices/investments/indexes/ot300 (last visited Nov. 9, 2012).
 James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights at p.6.