Introduction
The World Intellectual Property Organization (WIPO) headquarters, located in Geneva Switzerland, stands as testimony to the artistic world WIPO seeks to facilitate. As former Director General of WIPO, Arpad Bogsch notes in his commemorative book on WIPO’s first twenty five years,
The blue glass façade of the tower-like main part are a landmark of Geneva. The marble floors and decoration of the lobby as well as the mosaic covering the inside of its cupola are masterpieces from two specialized old firms of Rome. The main conference room, with a view on oak trees, and its decoration, are the delight of most delegates. More than a hundred works of art (sculptures, paintings, textiles), many of them gifts from governments and organizations, embellish several parts of the interior.1
For Bogsch, the WIPO building is a work of art that demonstrates why protecting intellectual property is essential. To make this argument Bogsch assumes that creative work is made possible by developing rules governing intellectual property rights. While some claim that WIPO conflates two distinct drives – a non-economic drive to create and the economic drive to own, WIPO sees the two drives as unitary. It is WIPO’s goal to extend intellectual property globally as it administers the treaties under its jurisdiction and provides educational opportunities for those who seek to learn about the benefits of strong intellectual property protection, especially officials from the global south.2
A different story of the WIPO headquarters is told by the architect, Pierre Braillard. For Braillard, the building’s intent was post-modern – to provide multiple perspectives and always shifting light. As Braillard puts it,
I was looking for a light, lively design that would change with the changes in light quality from morning to evening or from day to day; one that would change also according to the movements of the viewer who, as his viewpoint changed, would be presented with new perspectives.3
Braillard’s architectural intent is ironic given that WIPO seeks to eliminate ambivalence and multiple perspectives from the interpretation of intellectual property world-wide and instead encourage all nations to extend the same treatment to IP.
Upon entering WIPO’s main entrance, one encounters the granite and marble foyer. Aside from the security guards and desk, the most prominent aspect of the foyer is the fountain that takes up an entire wall and is integrated into both the cupola and the granite floor. According to Braillard,
It represents the emergence of the world from the mists, represented by white marble, beneath which water, the source of all life, appears as from a spring and trickles down the wall.
Then comes the Earth itself represented by the grey rock. The water gives birth to plant life, which we see as marble that is first pale green and gradually darkens as that life becomes more dense.
At the foot of the wall of water, representing human thought, collects in a marble basin from which five multi-colored ribbons spring forth, representing thought in the five continents. These ribbons, with their ever-changing colors, spread through the entire lobby. They wind in and out at the whim of mankind, broadening as they pass through centuries of enlightenment and narrowing during periods of intellectual austerity.
This cycle, extending from the birth of the world to the present day, culminates in the apotheosis of a sunburst, representing the discovery of nuclear energy.4
Such a description locates human creativity and scientific ingenuity in the primordial and evolutionary structures of our humanity. It does not, however, make an economic argument for the protection of intellectual property, but instead suggests that our essence as human beings is tied up with the creative process which is inseparable from a grand narrative of human history.
Other sites on WIPO’s campus also problematize the narrative of strong intellectual property that WIPO would like to spread throughout the world. The link between protection of intellectual property and creative work is not nearly as clear cut as WIPO would like us to believe and one of the many fountains gracing the WIPO grounds helps to highlight the complexity of creation and appropriation.
This fountain circles the outside of the main conference room; it is 58 meters wide and 3.5 meters high. According to Braillard, the functional purpose of the fountain is to mitigate traffic noise. However, the sculptures in the fountain are interesting from an intellectual property perspective. These are castings of sculptures originally produced by Giambologna, a 16th Century Florentine Sculptor. The original water nymphs can be found in Neptune’s fountain on the Piazza Signoria in Florence.
What, then, can we learn from the sculptures in WIPO’s fountain? Certainly, the motivations for creating the originals in 16th century Florence had nothing to do with modern copyright. Additionally, they can be copied and brought to WIPO because intellectual property law does not stand in the way (such an appropriation of a modern sculpture would be much more difficult). The designers of WIPO’s buildings and grounds utilize artistic work outside the realm of property rights while at the same time seeking to make such appropriations by others more difficult in the future. The water nymphs in the fountain may be a testimony to the creative genius of humanity, but they are not a testimony to the value of intellectual property rights.
As WIPO’s headquarters illustrate, there is a disconnect between an economic regime of intellectual property and the creative and innovative drives associated with human ingenuity. A market-based system claims that the motivation for innovation is the possibility of economic rewards, but this rather superficial narrative does not fully account for the underlying impulse behind creation, nor does it provide the necessary conditions for future economic development and/or cultural creation. WIPO, however, is focused upon protecting a very narrow segment of human creativity – that done under the rubric of economic incentives.
WIPO claims that by providing the framework for strong intellectual property rights, it can facilitate economic development, even in the least developed countries. This claim about the benefit of intellectual property for the developing world is part of what could be called WIPO’s original “development agenda.” The possibility of development sparked by the protection of intellectual property is one of the justifications for why WIPO could, and should, achieve special organization status within the United Nations.
Since its inception as an organization, WIPO has aligned itself with the UN goals of development. However, “development” for WIPO takes the form of institution building to protect intellectual property. WIPO only assesses itself based upon how often it communicates its message of strong intellectual property rights, not ever on if the institutions and legal framework it introduces around the world actually facilitate development. It is time to make that assessment – has the work done by WIPO in the past 37 years contributed meaningfully to economic development in the least developed countries of the world?
This paper introduces a WIPO counterfactual – the world without WIPO.5 To revert to a world without WIPO does not necessarily mean we would revert to a world without international oversight of intellectual property. So we must also pretend this history (or at least some of this history) would not exist in order to better ensure the counterfactual. So, the question before us is: what if WIPO did not exist; what if WIPO had not, for the past almost 40 years been working towards its goals regarding IPRs; finally, what might be the impact on development for the least developed countries in the world? The narrower question regarding the impact on the least developed countries of the world will be the primary focus of the paper and is premised upon the fact that WIPO’s special organization status within the United Nations requires WIPO to adopt the mission of the UN to facilitate development.
To examine this question I’ll first investigate the theory of counterfactual analysis. Second, take a brief look at WIPO’s goals and mission. Third, in order to examine the impact of WIPO on development, I’d like to look at two countries as case studies – Chad and Mali – in order to assess the methods through which WIPO’s activities have facilitated development in these countries. Finally, I’d like to tell a story of an alternative WIPO – to ask the question, what if WIPO redefined how it contributes to the development of its member-states? Ultimately, my argument is that while WIPO has contributed to institution building, meaning more countries now have laws regarding intellectual property than would otherwise be the case, development of any kind, economic, social, cultural or political, has not been substantially enhanced by WIPO’s existence. Despite decades of meetings and educational activities, not only do IPRs remain relatively unprotected, but strengthening their protection has not sparked development; at least not in the countries that could use it the most.
