Debora HALBERT

1 Arpad Bogsch, “The First Twenty-Five Years of the World Intellectual Property Organization from 1967 to 1992.”  International Bureau of Intellectual Property: Geneva 1992.  WIPO Publication No. 881 (E), p. 71-72.

2 For an important new work on WIPO see:  Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda, Routledge, 2007.

3   Pierre Braillard, “The Blue Tower of WIPO on the Place des Nations in Geneva,” in Arpad Bogsch, “The First Twenty-Five Years of the World Intellectual Property Organization from 1967 to 1992.”  International Bureau of Intellectual Property: Geneva 1992.  WIPO Publication No. 881 (E), p. 94.

4 Braillard, p. 96-97.

5 It must be mentioned that the end of WIPO does not necessarily mean the end of the treaties currently administered by WIPO, especially the Berne and Paris Unions which pre-date WIPO.  In fact, the end of WIPO would not even mean the end of an international agency to oversee implementation of intellectual property agreements since the BIRPI, which became WIPO, existed prior to WIPO's inception and that UNESCO administers the Universal Copyright Convention.  UNESCO, Universal Copyright Convention as Revised at Paris on 24 July 1971, at http://www.unesco.org/culture/laws/copyright/html_eng/page1.shtml (updated 20/06/2001).

6 Nicholas Rescher, Imagining Irreality: A Study of Unreal Possibilities, Chicago: Open Court, 2003; Jiri Benovsky, Persistence Through Time, and Across Possible Worlds.  Picataway, NJ: Transaction Books, 2006; John Divers, Possible Worlds.  London: Routledge, 2002.

7 David R. Mandel, Denis J. Hilton, and Patrizia Catellani, (Eds.) The Psychology of Counterfactual Thinking. London: New York, 2005.

8 Basil Edward Crackwell, Evaluating Development Aid: Issues, Problems and Solutions, New Delhi: SAGE Publications, 2000; Philip E. Tetlock and Erika Henik, “Theory-versus imagination-driven thinking about historical counterfactuals: Are we prisoners of our preconceptions?” in David R. Mandel, Denis J. Hilton, and Patrizia Catellani, (Eds.) The Psychology of Counterfactual Thinking. London: New York, 2005, p. 199-216.

9 Barbara A. Spellman, Alexandra P. Kincannon, and Stephen J. Stose, “The Relation Between Counterfactual and Causal Reasoning,” in in David R. Mandel, Denis J. Hilton, and Patrizia Catellani, (Eds.) The Psychology of Counterfactual Thinking. London: New York, 2005, p. 28.

10 Keith D. Markman and Matthew N. McMullen, “Reflective and Evaluative modes of Mental Simulation,” in David R. Mandel, Denis J. Hilton, and Patrizia Catellani, (Eds.) The Psychology of Counterfactual Thinking. London: New York, 2005, p. 77.  According to the psychological literature, generally speaking, more learning results from upward counterfactuals, or how the world might become better, than from downward counterfactuals.  See:  Susana Segura and Michael W. Morris, “Scenario Simulations in Learning: Forms and Functions at the Individual and Organizational Levels,” in David R. Mandel, Denis J. Hilton, and Patrizia Catellani, (Eds.) The Psychology of Counterfactual Thinking. London: New York, 2005, p. 94-109.

11 Philip E. Tetlock and Aaron Belkin, “Counterfactual Thought Experiments in World Politics: Logical, Methodological, and Psychological Perspectives,” in Philip E. Tetlock and Aaron Belkin (eds). Counterfactual Thought Experiments in World Politics: Logical, Methodological, and Psychological Perspectives. Princeton:  Princeton University Press, 1996, p. 4.

12 Crackwell, p. 128.

13 Id.

14 One strategy designed to negate the influence of pollutants is to develop a counterfactual approach that focuses on 'additionality,' “that is, what can safely be attributed to the project and not to other influences.” Id. at 129.

15 Tetlock and Henik, p. 199.

16 Id at 211.

17 Id at 213.

18 Tetlock and Belkin, p. 15.

19 The activities of WIPO are briefly outlined in their annual reports which can be found at http://www.wipo.int/ (site visited February 8, 2007).

20 World Intellectual Property Organization, What is WIPO, at http://www.wipo.int/about-wipo/en/what_is_wipo.html (visited February 8, 2007).

21 World Intellectual Property Organization, Proposed Program and Budget for 2006/07 Presented by the Director General, at http://www.wipo.int/edocs/mdocs/govbody/en/wo_pbc_8/wo_pbc_8_3_pub.pdf (visited February 8, 2007).

22 World Intellectual Property Organization, What is Intellectual Property? Geneva: WIPO publication No. 450(E), p. 3

23   Bernard Lanne, “Chad: Regime Change, Increased Insecurity, and Blockage of Further Reforms,” in John F. Clark and David E. Gardinier, eds. Political Reform in Francophone Africa, Boulder: Westview Press, 1997, p. 268.

24 Mario J. Azevedo and Emmanuel U. Nnadozie, Chad: A Nation in Search of its Future, Boulder: Westview Press, 1998, p. 17.

25 Ibid, p. 17.

26 Ibid., p. 20.

27 Ibid., p. 65.

28 Mario J. Azevedo, Roots of Violence: A History of War in Chad, Amsterdam: Gordon and Breach Publishers, 1998, p. 67; Terry M. Mays, Africa's First Peacekeeping Operation: The OAU in Chad, 1981-1982, Westport: Praeger, 2002, p. 19.

29 Ibid, p. 74.

30 Ibid, p. 74.

31 Ibid, p. 74.

32 Ibid., p. 89- 90.

33 Ibid, p. 178.

34 Guy Benveniste and William E. Moran, Jr. Handbook of African Economic Development, New York: Praeger, 1962, p. 6.

35 Bernard Lanne, “Chad: Regime Change, Increased Insecurity, and Blockage of Further Reforms,” in John F. Clark and David E. Gardinier, eds. Political Reform in Francophone Africa, Boulder: Westview Press, 1997, p. 269.

36 J. Millard Burr and Robert O. Collins, Africa's Thirty Years War: Libya, Chad, and the Sudan 1963-1993, Boulder: Westview Press, 1999, p. 26.

37 Ibid, p. 26.

38 Ibid, p. 26.

39 International Monetary Fund, Surveys of African Economies: Volume I: Cameroon, Central African Republic, Chad, Congo (Brazzaville), and Gabon, IMF: Washington DC, 1968, p. 4.

40 Lanne, p. 270.

41 Ibid., p. 270.

42 Robert Buijtenhuijs, “French Military Interventions: The Case of Chad,” in Anthony Kirk-Greene and Daniel Bach, Eds. States and Society in Francophone Africa Since Independence, New York: St. Martin's Press, 1995, p. 215-217.

43 Hans Eriksson and Björn Hagströmer, Chad - Towards Democratisation or Petro-Dictatorship? Nordiska Afrikainstitutet, Uppsala, 2005, Discussion Paper 29, p. 37.

44 Ibid., p. 217.  See also Burr and Colins, arguing that President de Gaulle had a fondness for Chad and a desire to see Francophone Africa remain intact (p. 46-50).

45 Ibid., p. 217.

46 IMF, p. 176.

47 Burr and Collins, p. 29-30.

48 For a full account of Chad's membership see: Chad: Intellectual Property Profile, http://www.wipo.int/ldcs/en/country/pdf/td.pdf   Site accessed August 3, 2006.

49 For the full text of the Bangui Agreement, updated in 1999, see: African Intellectual Property Organization,  http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf.  Site visited August 3, 2006.

50 Africa Intellectual Property Organization, “History of the OAPI,” http://www.oapi.wipo.net/en/OAPI/historique.htm.  Site visited August 3, 2006.

51 Ibid.

52 I have sent letters to the Ambassador from Chad to the United States, to the Chad government, and to a “virtual Chad” website asking for information on the reasons for Chad joining WIPO.  To date, I have received no responses.

53 The World Bank Group, World Data Online. http://devdata.worldbank.org/dataonline/  Search done August 2, 2006.

54 Hans Eriksson and Björn Hagströmer, Chad - Towards Democratisation or Petro-Dictatorship? Nordiska Afrikainstitutet, Uppsala, 2005, Discussion Paper 29.

55 Robert Verzola discusses this trend in his important work.  See:  Robert Verzola, Towards a Political Economy of Information: Studies on the Information Economy, Quezon City, Philippines: Foundation for Nationalist Studies, 2004, p. 25-28.

56 The World Bank Group, World Data Online. http://devdata.worldbank.org/dataonline/  Search done August 2, 2006.

57 Linux Users in Chad (TD).  Available at: http://i18n.counter.li.org/reports/place.php?place=TD.  Last visited 1/11/2007. According to this cite Mali has 20 registered users.  See:  http://i18n.counter.li.org/reports/place.php?place=ML.

58 Caterina Batello, Marzio Marzot, Adamou Harouna Touré, The Future is an Ancient Lake: Traditional Knowledge, Biodiversity and Genetic Resources for Food and Agriculture in Lake Chad Basin Ecosystems, FAO, 2004.

59 WIPO, News and Events, http://www.wipo.int/meetings/en/archive_meetings.jsp?meeting_country=166 (last visited February 8, 2007).

60 David Robinson, “Overview of the Cultural and Historical Contributions,” in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali,  East Lansing: Michigan State University Press, p. 9.

61 Ibid, p. 15.

62 Andrew F. Clark, “From Military Dictatorship to Democracy:  The Democratization Process in Mali,” in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali, East Lansing: Michigan State University Press, p. 255.

63 Id, p. 255.

64 Ghislaine Lyndon, “Women in Francophone West Africa in the 1930s: Unraveling a Neglected Report,” in Democracy and Development in Mali, R. James Bigen, David Robinson, and John M. Staatz (eds), East Lansing: Michigan State University Press, 2000. p. 70.

65 Id.  See also, Monica M. Van Beusekom, Negotiating Development: African Farmers and Colonial Experts at the Office du Niger, 1920-1960, Portsmouth, NH: Heinemann, 2002.

66 Josué Dioné, “Food Security Policy Reform in Mali and the Sahel,”in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali,  East Lansing: Michigan State University Press, p. 122.

67 Dioné, p. 122.

68 R. James Bingen, “Overview - The Malian Path to Democracy and Development,” in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali,  East Lansing: Michigan State University Press, p. 245.

69 James Tefft, “Cotton in Mali:  The “White Revolution” and Development,” in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali, East Lansing: Michigan State University Press, p. 215.

70 Salifou Bakary Diarra, John M. Staatz, and Niama Nango Dembélé, “The Reform of Rice Milling and Marketing in the Office du Niger: Catalysts for an Agricultural Success Story in Mali,” in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali, East Lansing: Michigan State University Press, p. 170.

71 Dioné, p. 119.

72 Andrew F. Clark, “From Military Dictatorship to Democracy:  The Democratization Process in Mali,” in R. James Bingen, David Robinson, and John M. Staatz (eds), Democracy and Development in Mali, East Lansing: Michigan State University Press, , p. 255-256.

73 Bingen, p. 246.

74 Dioné, p. 131-32.

75 Clark, p. 258.

76 Clark, p. 257

77 Ibid, p. 255

78 The World Statesman, “International Organizations,” World Intellectual Property Organization, Available at:  http://www.worldstatesmen.org/International_Organizations2.html#WIPO.

79 Jacques Secrétan, Fourth William Henry Ballantyne Lecture, “The Work of the Berne Bureaux in the International Field at the Present Time,” Lecture delivered to the British Group of the Association at the Old Hall, March 12, 1957. WIPO Library, p. 10.

80 Ibid, p. 18.

81 WIPO, “Records of the Intellectual property Conference of Stockholm, June 11 to July 14, 1967.”  Geneva 1971.  (minutes for the meeting to create WIPO), p. 1088.

82 Id, p. 12-13.

83 Jacques Secrétan at 10.

84 UNESCO clearly stated that they would not withdraw their own right to define copyright issues given that the mission of their organization was wrapped up with the protection of copyright.  WIPO, “Records of the Intellectual property Conference of Stockholm, June 11 to July 14, 1967.”  Geneva 1971.  (minutes for the meeting to create WIPO), p. 1224  Report on the Work of Main Committee V (World Intellectual Property Organization) by Joseph Voyame, Rapporteur.

85 WIPO, “Report of the World Intellectual Property Organization to the Economic and Social Council of the United Nations at its Fifty-Ninth Session.” Analytical Summary for the year 1974, Geneva, April 30, 1975, p. 13.

A DIFFERENT WIPO STORY

Given the fact that numerous developing countries joined WIPO and sought to work within the existing international sphere to improve development in their home-countries, WIPO saw its mission as instructed by the needs of all its member countries, not simply those with powerful industrial centers. To that end, and consistent with its mission under the UN, WIPO began with education, but not simply education in terms of intellectual property rights protection. Instead, WIPO worked with UNESCO to build a clearing house for textbooks to help develop the educational background for future innovation by providing the necessary materials for development. Partnerships were made with existing educational institutions and with organizations working on providing education to ensure that literacy dropped and education became a priority. Associated with access to knowledge came domestic education in health, engineering, and agriculture, all much needed areas within the developing world. UNESCO took the lead on this project and WIPO supported them with the necessary technical information, but they did so recognizing that the goals of education would take priority over the protection of intellectual property.

Complimenting the textbook strategy to facilitate development, WIPO worked with UNCTAD to create an agricultural clearing house where appropriate agricultural technologies were licensed and shared with the developing world. With a goal of providing appropriate technology, WIPO in association with UNCTAD became an engine for appropriate development instead of a vehicle for making profits for multinational corporations.

WIPO also developed a technology transfer process associated with the new Patent Cooperation Treaty. The tech transfer process provided developing countries with legal support in negotiating licensing agreements with companies in the industrialized north. The problem was complex and to do it correctly, entire patent portfolios needed to be licensed, not simply a single technology. WIPO, in association with the United Nations Industrial Development Organization provided expert assistance on the ground to build facilities and encourage innovation. Technologies were licensed at affordable prices and with the intent of creating the necessary infrastructure for health care, transportation and industrial development. WIPO used its role as a clearing house for patents to identify the types of technologies most suitable for a developing economy and work to provide these technologies to the global south.

Finally, recognizing the importance of public health for a viable economy, WIPO worked with WHO to ensure that access existed to essential medicines and again used their patent clearinghouse to identify the key medicines that could be licensed affordably. They then worked with other UN agencies to establish the necessary infrastructure throughout the global south to produce these medicines locally and helped facilitate a distribution network by supporting public health clinics, which were staffed by those who were receiving and education because it was now possible to afford the textbooks to study.

In all cases, WIPO understood its mission as supporting other UN agencies in their efforts to improve development. Instead of working to develop offices and model laws in developing countries, WIPO first worked to create the conditions for development and then allowed the laws to emerge out of the process itself.

When all is said and done, it isn’t clear this rather idealistic scenario would facilitate development better than the reality. After all, UN agencies have been working on achieving development and have categorically failed if measured by economic conditions in the least developed countries. If anything, the spectacular failure to develop suggests that more is at work here than creating the conditions of protecting knowledge and innovation, but instead perhaps there is something wrong with the approach to development through the neo-liberal model of free trade and structural adjustment. However, such a scenario goes well beyond the scope of intellectual property protection and need to be saved for another day.

I want to conclude this paper by bringing back full circle to Geneva. This paper seeks to examine the impact of WIPO on LDC countries. However, one must question the ability of an organization to encourage the spread the message of the value of intellectual property internationally when violations of copyright law exist just down the street from their own headquarters. If one were to head through Geneva towards the city of Carouge, one would pass a bar called “Central Perk,” where the sign reads, “we’re your F.R.I. E. N.D.S.” Despite the fact this Central Perk is a bar, not a coffee shop, and no one was especially friendly, it is clear that the name and likeness is appropriated from the popular hit-television show Friends.

The presence of Central Perk in Geneva is another irony of WIPO’s existence. If Geneva is the headquarters of WIPO (and the WTO) and yet this bar can exist within a long walk from both headquarters, what really are these organizations doing? Of course, it is possible this local bar has permission from the television show to utilize their name and likeness, but I doubt it. Instead, it makes one wonder exactly how the world would be different if WIPO didn’t exist, given that its presence has not even made an impact a few miles down the road.

References:

WIPO – A STORY OF A POSSIBLE PAST

The Bureaux Internationaux Reunis pour la Protection de la Propriete Intellectuelle (The United International Bureau for the Protection of Intellectual Property) began life protecting what was then called industrial property. The “PI” in BIRPI stood for industrial property until it was changed to intellectual property in the mid-1950s as the concept of intellectual property was popularized. During the 50s, there was a struggle at the international level over the appropriate international agency to oversee intellectual property. Jacques Secrétan, the director of the BIRPI between 1953 and 195778 argued in the Fourth William Henry Ballantyne Lecture entitled, “The Work of the Berne Bureaux in the International Field at the Present Time” that while the International Bureaux would forge working relationships with other organizations, they should ultimately be in charge of protecting and managing intellectual property internationally.79 According to Secrétan, when different international organizations were given control over intellectual property issues, we were destined to, “end up with several contradictory conventions voted for by the same States.”80 UNESCO also recognized this possible problem given that they were the other agency most responsible at the time for copyright protection.81 Specifically, because the United States was not a member of the Berne convention (and did not join the Berne until 1989), it had created a separate intellectual property treaty through UNESCO called the Universal Copyright Convention.

The United Nations Conference on Trade and Development (UNCTAD) also had potential interests in the protection of intellectual property as it related to technology transfer and development. During the meetings to create WIPO they put the issue of technology transfer on the table and WIPO agreed to help those in the Least Developed World by providing the ability for them to attend meetings and work on plans for technology transfer.82 Other agencies also had a stake, including the World Health Organization with whom Secrétan had signed a working agreement in the 1950s.83

The BIRPI leadership believed that having multiple centers for institutional authority would create contradictions that could not be tolerated because the clash would lead to different intellectual property-related outcomes depending upon the agency involved. Implicit in this argument was the assumption that only a WIPO could focus on the protection of intellectual property whereas WHO, UNESCO or UNCTAD would balance intellectual property rights with their central missions of providing health care, cultural support, or development. Reading the minutes and assorted claims made by those involved suggests the emergence of WIPO was an assertion of territorial authority designed to elevate copyright and patent protection to a new privileged place where they would be shielded from a requirement to consider balancing intellectual property rights with other interests.

While BIRPI and then WIPO publicly proclaimed a concern about discrepancies in the law, this seems to be only one aspect of the agenda. After all, the existence of the UCC and the Berne already provided for disparity of treatment, given that the US created the UCC because it would not agree to all the provisions in the Berne. What becomes clear is that WIPO understood its role as producing the hegemonic discourse on intellectual property and consolidating control over this issue under the WIPO banner.84 In order to do this, first BIRPI underwent the transformation to WIPO in 1970 and was then formally admitted as a special agency of the United Nations.

In its first report as a UN specialized agency, WIPO stated that,

As in the case of all organizations of the United Nations system, one of the main objectives of WIPO is to assist developing countries in their development. WIPO assists developing countries in promoting their industrialization, their commerce and their cultural, scientific and technological development through the modernization of their industrial property and copyright systems and in meeting some of their needs in scientific documentation and the transfer of technology and technical know-how.85

As this quote suggests, WIPO did seek to couch its existence in terms of development, but its developmental strategy was to create intellectual property structures that met generic international ‘best practices’ instead of facilitating the growth of intellectual property laws through the development of local initiatives on culture, health care, and development. Thus, WIPO remained remote from the cultural lives of those they sought to help and as the case studies suggest, do not demonstrate any effective support for real development as a result. Given the history briefly described above, what if WIPO did not become a vertical silo of intellectual property protection, but instead, other UN agencies such as UNESCO, WHO, and UNCTAD integrated issues of copyright and patent protection into their own everyday operation. In essence, what if we fragmented IP protection and allowed it to move forward only when paired with the goals of development and technology transfer? The final scenario investigates this possibility.

MALI

Modern Mali, much like Chad, underwent a period of French colonial rule from the 1890s, ending June 20, 1960 with Malian independence. Mali’s pre-colonial history is illustrious. The region that became modern-day Mali was the central hub for African culture from around 1200 to 1400 CE and is the origin of many of the music and dance traditions of West Africa.60 Mali is a country of rich cultural diversity that multiple cultural identities “strengthened by a long history of cohabitation, conflict, and exchanges of all sorts – matrimonial, commercial, or simply that of neighbors.”61

Much like in Chad, the French found the costs of administering a colonial enterprise in Mali outweighed the benefits given the “largely uninhabitable and resource-devoid territory.”62 Thus the French “continued to administer it [Mali] without enthusiasm or any attempt to develop the area.”63 There was an effort by the French in the 1930s to cultivate the Niger River Valley in order to increase the export-based cotton industry to support the French textiles industry.64 The French embarked upon an irrigation scheme in the Niger River valley under the auspices of the Office du Niger which displaced families through flooding and established colonial villages where locals were forced to work on the plantations in a system of slave labor.65

Upon independence, Mali’s new leaders took a socialist path towards economic development and decolonization. Because the country was primarily agrarian entering independence, after independence the trajectory of development did not significantly change. The colonial enterprises of cotton and groundnuts remained central to the agricultural plan.66 Between 1960 and 1968 under the leadership of President Modibo Kéita and with French technical assistance, Mali adopted a central planning process that focused on industrialization, health, education, and social welfare policies aimed at helping the people.67 Kéita understood that economic investment was essential, but economic decisions were not separate from decolonization issues. Bingen points out that,

The central political issue was not whether the government should direct the economy, but which specific measures to use to achieve economic decolonization and economic independence from the French commercial monopolies.68

In this political and economic context, agricultural growth continued throughout the 60s and into the 70s. During the 60s and 70s cotton production increased at about 12% per year and69 despite flaws in its economic system, Mali was self-sufficient in the production of cereals until 1972-74.70 While many criticize Mali’s centralized planning and the lack of incentives for farmers for the downturn in grain production, it would seem that other factors intervened to make grain production difficult. Specifically, in the 70s Mali was subjected to severe drought which resulting in a national food crisis requiring massive donor aid.71

While Kéita was responsible for some economic decolonization, his rule was also contingent on political repression and the confiscation of grains by party elites. Ultimately, these practices led to a military-led coup in November of 1968. General Moussa Traoré who assumed power was not much better than Kéita. He suppressed the population, forcing many intellectuals into exile in Senegal or France and under his rule economic conditions did not improve. Despite the obvious problems with Traoré’s dictatorial rule, Cold War politics and the distinct lack of a better alternative meant that no efforts were made to alter the political leadership.72

Traoré ultimately sought economic help from the international community. In 1981 he agreed to restructure the economy in return for aid.73 Mali, in fact, became the “test case” for structural adjustment.74 However, despite some economic liberalization as a result of structural adjustment, the combination of political repression and economic debt brought the Traoré regime to an end when he responded violently to politically-motivated riots. In March 1991, riots broke out and were violently squashed by the Traoré regime. On March 26, 1991, Traoré was arrested and Lt. Colonel Amadou Toumani Touré took power.75

Political resistance to the Traoré regime was in part facilitated by the cultural organization Jamana founded by Dr. Alpha Oumar Konaré. Jamana was

[A] highly successful cultural cooperative which sponsored forums, festivals, publications, and literacy programs. The cooperative also established museum-documentation centers, craft workshops, and independent printing and publishing company, and Mali’s first private radio station.”76

Jamana served the purpose of creating the space for a subtle political critique and because it was not a political party it was able to exist under the repressive conditions of the Traoré regime.

Lt. Colonel Amadou Toumani Touré took power under a military regime but was responsible for transitioning the Malian government to democracy. The first democratically elected President of Mali was Dr. Alpha Oumar Konaré. Since democratization, political conditions in Mali have improved, but the massive debt load makes it unlikely that Mali will be able to pay off its debts without international intervention. As Andrew Clark puts it, “even by West African standards, Mali is desperately and perhaps perpetually poor.77 Average incomes in Mali remain around $250/year and adult literacy is very low.

Much like the case in Chad, it is unclear what, if any, benefit Mali can claim from membership in WIPO. Mali joined WIPO in 1982 and it seems most likely that their membership was one of the terms associated with structural adjustment. Since joining, WIPO has held meetings in Mali to educate the intellectual property elite about the concepts, but otherwise, there is not significant evidence of what WIPO has done in the country. However, it is the pre-1982 period that is of most interest given that the twelve years between Chad’s membership in WIPO and Mali’s membership are of most relevance to the impact WIPO may have had on development in Chad. What do these two case studies tell us?

First, there is no clear link between culture in Mali and Chad and the protection of intellectual property. Both countries have vibrant indigenous cultures with music and dancing traditions that date centuries prior to French colonization. Both countries relied upon these cultural traditions during the decolonization process to highlight a uniquely African identity, but cultural innovation was not motivated by intellectual property. Instead it precedes it. There is the possibility of making the argument today that copyright may play a role in African cultures given the rising popularity of world music in the West and the techniques of appropriation associated with the music industry. However, nothing would suggest that Chad’s twelve year start at protecting copyrighted works has altered protection in that country or facilitated their relationship to world music.

Second, poverty reduction should be the most important goal in Chad and Mali. Mali suffered from a food crisis during the 70s and despite WIPO membership, Chad remained equally poor during that decade. Membership in WIPO did not alter these facts. In fact, such membership is doomed inevitably to failure because so many more important intervening variables exist – mass starvation, civil unrest, and inadequate infrastructure of every kind. What would have helped development in both countries would have been access to knowledge in the form of textbooks and appropriate technologies along with the appropriate resources to implement these from the ground up. Instead, because of cold war politics and reliance upon top-down international institutions, no such aid was forthcoming.

Third, sponsoring conferences and workshops in the host countries are not enough to change conditions on the ground. In both Chad and Mali, WIPO has sponsored workshops, albeit only in the last decade. However, despite the fact that WIPO measures its success in terms of number of people who have heard its message, there is no evidence that building intellectual property bureaucracies have made any difference in either country. Additionally, there is evidence that both countries began from radically different notions of property rights and the contributions of the individual to the community – a system based far less on the individual than the intellectual property system that has since been imposed.

These considerations lead to the conclusion that WIPO has neither been necessary nor sufficient for economic development in Chad or Mali. Outside the very small offices listed at WIPO’s website as points of contact, it isn’t even clear what type of impact these offices may have. However, WIPO itself could be different. In the final section of the paper I’d like to turn a second WIPO ‘what if’ – what if WIPO took the mission of facilitating development seriously.

DEVELOPMENT, INTELLECTUAL PROPERTY AND CHAD

Chad gained its independence from the French in 1960 and was a deeply troubled nation-state from the start, in part because it faced a negative colonial legacy. The French came to the region at the turn of the century and fought a long and protracted war to achieve the subservience of the local population. Southern Chad more quickly accepted colonial rule in an effort to preserve themselves from the slave-taking Northerners.23 The North, Center and East of Chad were dominated by “powerful theocratic predatory and full-time warring states.”24 The South “enjoyed a sedentary agricultural life that provided most of the necessities and ensured comfortable living.”25 However, despite variation in strength, resistance to colonial rule existed throughout the territory. The French never adequately subjugated the North of Chad and these areas remained fairly independent under French rule.26 According to Azevedo, the French rule of Chad was intrinsically violent.27

Generating tax revenue in Chad was problematic from the start due to the lack of natural resources and the fact that the vast majority of Chad’s population lived subsistence lifestyles. Without income, the French could not derive the appropriate revenue to run a colonial regime. As a result, the colonial government established in Chad was ruled by the least competent of French civil servants and deemed a demotion for those who were required to move there.28 The French relied upon forced labor to impose cotton on the Southern region and to supply the French military with fresh bodies. The resistance of the local population, the lack of an accepted governmental structure, compounded with oppressive rule, set the stage for little stability in the region.

The French approached colonization as a form of assimilation. Those (few) who adopted French culture and language could be assimilated, become French citizens, vote, own property and attend school in Europe.29 As Azevodo notes, “To qualify for assimilation they had to be able to read and speak French, adopt French culture (in dress code and eating etiquette, for example), abandon the drums and local dancing styles, be monogamous and, in most cases, Christian – and have the financial means to sustain themselves.”30 Those who were not assimilated were forced into a labor system, le systèm’indigénat, and had no rights within their own country.31 Very few Africans were assimilated and instead experienced harsh working conditions or military service.

Upon independence nothing had been done to resolve the pre-colonial tensions between the Northern and Southern ethnic groups in Chad. In fact, the French had exacerbated these tensions through discriminatory taxing structures and governance practices. François Tombalbaye, Chad’s first President, sought “redress for past grievances,” which did nothing to improve relations between the regions. Furthermore, he consolidated power into a single-party state which he governed exclusively.32

Chad had been neglected as a colony and upon independence had few educated people ready to take over the government. According to Azevedo, “on the eve of independence, the entire colony of Chad had only one law school graduate and one graduate of the French Overseas National School, and, contrary to the spirit and the letter of the Loi Cadre of 1956, only a handful of southerners actually became full French citizens.”33 Writing in 1962, two years after independence, Guy Benveniste and William E. Moran, Jr. noted that the vast majority of Chadians still lived traditional lifestyles that were at odds with the requirements of a modern nation-state.34

The French and European missionaries had established some primary schools and a few secondary schools, but the Northern Chadians who adhered to Islamic traditions refused to send their children to these schools.35 This meant Southerners were the most qualified to take over government positions and French-educated southerners took over governmental responsibilities after independence.36 Benveniste and Moran argued in 1962 that Chad, and much of the rest of independent Africa, needed administrative officials and technical assistance. While the technical assistance programs provided under the United Nations were essential, without adequate personnel, they argued, there was no way for technical and development assistance programs to succeed.

As with many newly established African nations in the late 60s, issues of economic development quickly emerged and emphasis was placed on industrial evolution and the creations of markets, despite the fact that most of the population still lived subsistence lifestyles. Cotton had been imposed on Chad as a way to create funding for the colonial regime, but it quickly became an essential export industry for the emerging nation-state. With the exception of cotton, the new nation-state had limited industry, few civil servants, and an incomplete educational structure.

Given the nature of the economy upon independence, the French continued to provide aid to Chad. According to Burr and Collins, 95% of Chad’s budget was provided by the French, along with advisers.37 Essentially, Tombalbaye’s rule was made possible by this foreign aid. Because the French maintained control over health care, education, banking and the cotton industry, they remained a powerful influence in Chad even after independence.38 Despite foreign support, Chad made little economic progress between 1960 and 1968.39 Deficits rose throughout the 1960s and the lack of internal infrastructure (few roads that could be used all year and no fully navigable rivers) made trade difficult.

The lack of development along with the increasingly brutal rule of Tombalbaye exacerbated tensions between Northern and Southern Chadians. In 1966, revolutionary forces in Chad united as the National Liberation Front of Chad (Front de Libération Nationale du Tchad, or FROLINAT) to resist the Tombalbaye government and the abuses perpetuated by Southern government officials against Northerners.40 Throughout the late 60s and into the 70s much of Chad’s attention was focused on the civil war that erupted between the North and the South and the French were called upon to intervene to support the Tombalbaye government against the rebels.41 Robert Buijtenhuijs argues that because of Tombalbaye’s rule and the resistance to it, the Chadian state virtually disintegrated during the late sixties and early seventies. But for French intervention between 1969 and 1971, the Tombalbaye regime would have been overthrown by the FROLINAT rebels.42

Despite these internal conflicts, the concept of the Chadian nation-state remained important for all parties.43 The Northern resistance sought a different Chad, not the elimination of Chad. The French seemed to think that maintaining a state in Chad was essential for their national interests. However, they placed the future of Chad in Tombalbaye’s hands because they wished for Chad to remain Francophone instead of possibly coming to be dominated by the Northern Islamists.44 In addition to military support between 69 and 71, the French sent a Mission for Administrative Reform (MRA) to help stabilize the functions of Tombalbaye’s government, a mission that did not meet with cooperation on the part of Chadian civil servants.45

Despite the many internal problems, Tombalbaye seemed intent on placing Chad on the regional and international political map. On July 10, 1963, Chad joined the United Nations. They joined the International Monetary Fund in 1967. They also were a member of several regional and international organizations dedicated to economic development including the Common Organization of African and Malagasy States, the European Economic Community Association and the UN Economic Commission for Africa.46 As Burr and Collins note,

During the first three years after independence the Republic of Chad differed very little from the colonial Chad. This would change as Chad followed other newly independent African nations to create autochthonous regional organizations designed to stimulate political and economic integration. In addition, there were numerous Third World and African meetings to attend, alliances to be formed in the United Nations and its subsidiary organizations, and an awareness of the very active Arab, Islamic coalitions, and the growing importance of Third World regional blocs, which spanned the globe eastward from the Atlantic to the Pacific.47

Tombalbaye was active at the regional and international level and even as the country faced the disintegration of internal governmental structures, it retained its identity as a nation-state internationally.

Much like their participation within regional and international organizations more generally, Chad is a signatory to virtually all the international agreements on intellectual property. They signed the Paris treaty to protect industrial property in 1963, the same year they became a member of the UN. Chad signed on to WIPO in 1970 making it one of the original signatories to the new organization. In 1971, they signed the Berne convention which protects literary and artistic works along with a series of smaller treaties administered by WIPO.48 In 1977, Chad became party to the Bangui Agreement on trademarks, patents and industrial designs, the regional agreement establishing intellectual property protection and administered by the African Intellectual Property Organization (OAPI).49

According to OAPI, until 1962 French law governed the patent process in all countries part of the French Union. Upon independence, under the rules set forth in the Paris convention (which Chad signed in 1962), regional organizations could be created to establish patent protection. In central Africa the regional agreement was called the Libreville Agreement.50 According to OAPI, “the Libreville Agreement covered the territories of African countries of French expression and culture.”51 Thus, the early adherence and creation of intellectual property regimes in the former French colonies were linked in part to France’s involvement in these regimes.

By 1977, Chad, along with the rest of central Africa, had a series of intellectual property laws that met international standards. These agreements were reached and signed while Chad was in the midst of a full-fledged civil war that brought the state to the edge of destruction, including the assassination of President Tombalbaye in 1975. Given this political context, it is difficult to understand what Chad thought would be the benefit of membership in WIPO and these international treaties to protect intellectual property.52

Perhaps Chad saw membership in WIPO as another avenue to align with the growing delegation of Third World countries that had emerged onto the international scene in the post-colonial years. It is possible that Chad, like many developing countries in the late 60s and early 70s, saw international organizations like the United Nations (and thus possibly a future WIPO) as the mechanism through which they could focus world concern on development. However, while membership in the UN makes sense under this analysis, given that Tombalbaye was forcing Chad through a period of Africanization where he sought to move away from Western ideas at the same time, it seems strange for Chad to sign treaties protecting a Western notion of creative work while at the same time seeking to distance himself from Western culture.

It could be that Chad was convinced by the rhetoric associated with WIPO that signing these regimes would help facilitate technology transfer to countries desperate for development. Development issues were alive and well during WIPO discussions in the 70s and many thought that the demands of the developing world would threaten the creation of WIPO. Chad would have been involved in these discussions and understood the possible benefits of technology transfer. In retrospect, the talk of technology transfer to facilitate development was more rhetorical than actual and was linked to WIPO’s desire to become a UN special organization.

The reasons for Chad’s decision to join WIPO are not at this point clear. However, what is clear is that WIPO promised protection of intellectual property via the creation of copyright and patent laws would spark domestic economic development. More than 30 years have passed since Chad became a member of WIPO and it should be possible to assess how their membership in this organization has helped Chad develop. Is Chad better off today than they were in 1970? World Bank data would suggest that little about Chad has improved over the past 35 years.53 Only recently has there been some upward movement regarding Chad’s economic conditions, but this upward movement is related to the discovery and exploitation of oil within Chad’s borders not an underlying intellectual property system. It is yet to be seen if the profits from oil exploration will be used for further development in Chad.54

WIPO continues to assert that intellectual property rights are essential for innovation to exist within the developing world, yet in Chad where these laws have been on the books since the mid-70s they have done nothing to spur foreign investment or domestic innovation. While WIPO would most likely argue that the lack of development is due to the minimal enforcement of IP laws, it is equally likely that numerous intervening variables have made the use of intellectual property laws less relevant to development than they might be for a more advanced economy. First, Chad’s educational system remains rudimentary with literacy rates in the country continuing to be low. Thus, copyright laws hinder access to materials necessary for basic education and it is difficult to see how copyright laws will be useful until the day when the population achieves a higher rate of literacy and annual incomes sufficient to purchase copyrighted material.

Second, while Chad hosts a university which opened its doors in 1970, much of its early life was threatened by civil war. Chad, like so many countries in the global south sends many of its best minds to be educated outside the country and suffers from the inevitable brain drain when many do not return to their home country. Those with advanced degrees and the potential for innovation are often working outside their home country.55 Again, international political economy considerations intervene to make copyright and patent law less relevant.

Third, while copyright and patent law is considered essential for a technology industry, Chad has few Internet connections, few households with computers and is far more likely to be harmed by the high prices associated with copyrighted products than helped by them.56 Few within Chad’s borders can afford these communication tools unless free software became accessible and currently only two people are registered in Chad as a Linux users.57 Thus, to the degree that technology exists in Chad, copyright hinders access instead of helping.

It should also be noted that available research on Chad suggests that a vibrant economic life based upon traditional knowledge sustains many Chadian citizens. This knowledge is shared within the community and does not rest in any way upon intellectual property laws. Furthermore, this traditional knowledge is better suited to the local environment and the way of life lived by most people within Chad.58 To that end, Chad is more threatened by the destruction of the natural environment and the reduction in the size of Lake Chad than by the weak protection of intellectual property.

Finally, despite some economic growth, Chad remains one of the poorest countries in the world. Given these economic conditions, it can be argued that there are greater concerns than protecting intellectual property and developing the infrastructure necessary to enforce these laws. While Chad may rely upon OAPI for enforcement, the lack of domestic intellectual property based industries suggest that there has been little benefit from membership in WIPO for the past 37 years. What WIPO can provide are not viable steps towards economic development and technology transfer, but a bureaucratic framework that few would use. One must wonder how Chad would have developed in the absence of WIPO and the answer seems to be that not much about Chad’s development would have changed – not a glowing assessment of the world’s preeminent intellectual property organization. WIPO lists on its website five meetings held in Chad since 1996, several on industrial property, and the other on issues related to OMPI and author’s rights.59 If WIPO had not existed, these five meetings could not have taken place, but it is unclear how life in Chad would have otherwise have been altered.

Chad is not alone in West Africa as a signatory to WIPO. In order to better assess the impact of membership in WIPO on development I would like to turn to a second case study to compare the possible benefits achieved by membership in WIPO. Mali was chosen for several reasons. First, like Chad, Mali was a French colony who achieved independence at roughly the same time. Thus, the colonial experience is similar, as is the language and culture of colonization. Second, while geographically slightly better situated, Mali is also landlocked and among the poorest countries in the world. Third, Mali did not join WIPO until 1982, twelve years after Chad joined, and it might be possible to examine conditions in Mali during these twelve years to assess the possible benefits WIPO membership might have had for Chad that Mali did not receive. Finally, what, if any, benefits can be attributed to membership in WIPO for Mali?

THE WORLD INTELLECTUAL PROPERTY ORGANIZATION

In WIPO’s 2006-2007 program and budget, five strategic goals are listed:

* To promote an IP culture;
* To integrate IP into national development policies and programs;
* To develop international IP laws and standards;
* To deliver quality services in global IP protection systems; and
* To increase the efficiency of WIPO’s management and support processes.20

Each of these goals is accompanied by several programs deemed integral to accomplishing the goals, adding up to 31 independent programs proposed for the 06/07 year.21

WIPO’s first goal, to promote an IP culture, relies heavily upon developing an educational agenda. WIPO understands that policing the world is not sufficient – one must win the hearts and minds of the people through education. Only through education can the people of the world understand the benefits of intellectual property regimes. Thus, WIPO seeks to educate the world about the benefits of intellectual property because once people believe in the idea of intellectual property, they will help make the world safe for it. To achieve this goal, WIPO hosts workshops, forums, training classes, and even its own summer university program to communicate the value of intellectual property protection to the world at large.

Education is also central because WIPO does not claim, nor want to be, the world police for IPRs. There is the understanding that WIPO will make the world safer for creative work by building the infrastructure necessary to protect intellectual property and developing rules and regulations for ensuring that “piracy” does not occur. Furthermore, there is the explicit argument made by WIPO that protecting IPRs is essential for future economic development. This line of reasoning is described in their pamphlet, What is Intellectual Property? In this short pamphlet, WIPO first describes what intellectual property is and then argues that it should be promoted and protected because “the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.”22 One might note the irony in having to educate people about the centrality of a concept which is evidently so crucial to economic development.

According to this goal, establishing ground rules in the form of legal protections and administrative offices for IPR protection should help economic development and foster innovation. It seems legitimate to link economic improvement to WIPO membership given the claims WIPO makes regarding the necessity of IPRs for innovation. If, given membership in WIPO, economic conditions have not improved, is it possible to claim that WIPO has contributed to development? If economic conditions have not improved since membership in WIPO then one must ask if WIPO made any impact at all – or if, perhaps, their goals are insufficient to produce the type of economic development they claim.

In the next section of the paper I’d like to introduce a case study in order to test the development goals of WIPO against one of the original countries to sign on to the agreement. If WIPO is correct, and adherence to intellectual property laws is a necessary condition for development, then one should find that development has been improved by membership in WIPO. If development has not improved, then one must question the role of an organization like WIPO and suggest that they reconsider their assessment techniques. For the most part, WIPO’s assessment of itself focuses on the number of trainings held, the number of people who have heard the intellectual property message, and the number of countries who are revising their laws to meet the standards associated with WIPO. However, WIPO does not investigate what these new laws and educational paradigms actually facilitate on the ground. While only one country, Chad makes an interesting case study and will be the focus of the next section.

COUNTERFACTUAL THEORY

I want to first examine the literature on counterfactual claims. This literature is broad and interdisciplinary. It is grounded in philosophy where ‘unreal possibilities,’ ‘modal realism’ and ‘possible worlds’ are studied.6 Psychologists study the psychological dimensions of counterfactual thinking,7 and policy analysts use it as a tool for assessing the outcomes of policy actions8. Legal theorists also use it to examine the “what ifs” of legal scenarios. As one article on counterfactuals puts it:

Counterfactual reasoning allows us to imagine something in the world being other than it actually was or is (i.e., counter-to-fact); we can then imagine, or mentally simulate, the world continuing to unfold in a direction other than the direction it has actually taken. This ability allows us to torment ourselves with regret…9

Counterfactuals can be divided into upward counterfactuals that seek an improved reality and downward counterfactuals where things might be worse off.10 According to Tetlock and Belkin, “counterfactual reasoning is a prerequisite for any form of learning from history.”11

It is within the counterfactual literature that the question “What if WIPO did not exist” can be examined. According to Crackwell, the counterfactual technique can be used to measure change over time.12

The two main purposes of evaluation are: (a) to assess the outcomes and impacts of projects, and (b) to compare these with the objectives as set out originally, so that lessons can be learned to enable future project design and implementation to be improved.13

Using the counterfactual as an evaluation tool is difficult because projects can take years to complete and will encounter what Crackwell calls “pollutants,” events or actions not originally part of the project that impact the outcome positively and negatively.14 To make a counterfactual evaluation, it is necessary to use a case study approach in order to best determine how the project, in this case WIPO membership, influenced the outcomes, in this case development.

While this approach is difficult, given that no two areas or projects will be exactly alike, for the WIPO counterfactual it may prove illuminating to try to ascertain what factors are associated with innovation, creativity, and the need to join an organization such as WIPO. In this case, by taking Chad, which signed on to WIPO in 1970 and Mali, which became a member in 1982, we can we assess the benefits of joining WIPO, and if indeed WIPO facilitated development, in a comparative fashion by looking at the conditions in each country between 1970 and 1982 when Chad should have seen more creative innovation relative to Mali if membership in WIPO results in benefits to development by protecting creative work.

One last concern arises in our investigation of the WIPO counterfactual, especially given the historical nature of this inquiry. Tetlock and Henik argue on the basis of empirical research that it is easy for historical reasoning to “slip into ideologically self-serving tautology” and that it is difficult “to avoid becoming prisoners of our preconceptions.”15 Tetlock and Henik found that ideology plays a role in one’s ability to accept alternative historical possibilities. Evidence that fits with the governing ideology is seen as more compelling than evidence that does not fit.16 Thus, of special concern when engaged in an examination of history, is to avoid falling into the ideological trap of arguing for one’s pet set of conditions. Tetlock and Henik suggest one strategy is to “unpack” history using multiple alternatives in an effort to render that history more complex. Instead of allowing experts to create a sweeping narrative of history, to unpack history is to break “alternatives into progressively more differentiated subsets.”17 Despite the potential pitfalls, Tetlock and Belkin suggest that the existence of the counterfactual can keep us from using our knowledge about the past to claim that a specific historical outcome was inevitable.18 This type of intellectual thought experiment keeps us open and reflective about how change might occur in the future.

Counterfactuals are important thought experiments. In this case, has WIPO made an impact? According to WIPO’s measures, every year hundreds of people participate in seminars, others come to WIPO to study, still more are educated on how to draft ideal laws.19 All this leads to the claim that more people today know about intellectual property than knew about it in 1970. However, the key indicators I wish to investigate have to do with technological innovation and development, specifically as they impact the developing world. In the next section I will briefly outline WIPO’s goals in order to better understand how it sees itself in relation to the protection of intellectual property world wide.

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.

Abstract: WIPO claims that by providing the framework for strong intellectual property rights, it can facilitate economic development, even in the least developed countries. 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. 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?

In order to examine the impact of WIPO on development, I’d take 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. Ultimately, the case studies suggest that while WIPO has contributed to institution building, economic, social, cultural or political development 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.

Debora Halbert (halbert@hawaii.edu) is Assistant Professor of Political Science at the University of Hawaii at Manoa.