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?
