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.