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.