Cover Image
close this bookScience and Technology in the Transformation of the World (UNU, 1982, 496 p.)
close this folderSession II: Technology generation and transfer - Transformation alternatives
close this folderLegal aspects of the transfer of technology in modern society
close this folderVestry Besarovic
View the documentIntroduction
View the documentThe relevance of the legal order to the transfer of technological knowledge
View the documentSome proposed measures on the national and international levels

The relevance of the legal order to the transfer of technological knowledge

The legal protection of technological knowledge and skill, i.e., the law of industrial property, is an accomplishment of the contemporary national and international legal systems, as the object of protection gained its significance only in the circumstances of a relatively developed industrial production.

Industrial property rights were values of accessory nature till the Second World War in the majority of industrial underdeveloped countries. Domestic industry was almost non-existent in many countries in Africa and Asia, while industrialists and merchants from developed countries enjoyed a monopolistic position in the domestic market. On that account, there was no need for the registration of patents and trademarks and, accordingly, no need for domestic law on industrial property. The attainment of national independence, the beginning of the development of national industry, and the pressure exerted by the owners of technology from developed countries that they be granted exclusive rights influenced the adoption of the first national regulations on industrial property.

However, laws on industrial property that were and are still being enacted in economically underdeveloped countries are not adapted to the real stage of development of the production forces but, in most cases, have simply been taken over from the former colonial powers. The developing countries, fascinated by their systematization and legal concepts, adopt them without serious consideration because of the lack of domestic experts. In this process they fail to take into consideration that the laws they are taking as a model have been constructed in such a way as to protect the interests of the exporters of capital and technology and/or are designed for a society with a much more developed base and superstructure than exists in the country which is adopting them.

In this manner the phenomenon of law becoming an object of transfer from developed to developing countries originated. It is a phenomenon because the legal order is, in fact, the framework for the transfer of technology, legalizing it on the national and international levels. Thus we have the situation of developed countries exporting not only industrial equipment, knowledge, and capital but also legal rules enabling the exploitation of the imported equipment, knowledge, and capital in the recipient, developing country in a manner that suits their owner. In the developing countries we come across legal rules representing a more or less unsuccessful combination of the customary national law and the law received from an industrial power, usually the former colonial power.

A former colonial power has continuing economic influence in a developing country, and it tries to preserve such a situation as long as possible because it is in its interest, i.e., in the interest of its citizens who are transferring technology into the developing country under the protection of the industrial property law. In this way, the development of peculiarities in the law of new states is impeded, and positive ideas on the unification of the law on industrial property are compromised because of the neo-colonialistic ambitions of some developed countries. The national law on industrial property, instead of encouraging domestic innovative activities and having a positive effect on the flow of foreign technology (under conditions favourable to the national economy), works against domestic industry in favour of foreign technology owners from the developed countries.

The existing system of international protection of industrial property is based on the principles proclaimed in the Paris Convention at the end of the last century. Accordingly, the system is based on the principle of formal equality of the member countries (and the same conditions are imposed upon unequal members). The granting of legal protection to foreign citizens and adopting the principle of national treatment were important democratic achievements in the domain of law and international relations in general. Although this system has its undeniable historical significance and is a contribution to the legal theory and practice of the nineteenth century, it should be pointed out that, even at the time of its establishment, it did not suit the interests of underdeveloped countries. But at those times in the underdeveloped countries that were already sovereign states, the internal balance of power favoured the infiltration of foreign influence and consequently of foreign law too; so those countries acceded to international conventions, irrespective of the real character of such conventions, and it was taken to be a progressive attitude on the part of domestic governments. Domestic legal rules contributed to such a climate too. As has already been mentioned, they represented - more or less - the reception of foreign law. However, at the time of the adoption of the Paris Convention the majority of the contemporary developing countries were colonies, and the question of their accession to the convention was solved by the application of the "colonial clause.)' So the system of international protection of industrial property was created by the industrially developed countries, and it served as a tool for the institutionalization of existing monopolistic and colonial positions.

Later, in the circumstances of a developed international market, modern industrial production, and the raising of conscience of the most advanced countries in the world, the implementation of the international system of industrial protection revealed the extent of its outdatedness. However, it was and still is difficult to oppose the apologetic claims of an equitable treatment of all the parties to the Paris Convention and its other principles as well, since it is backed up by the most developed countries in the world. On the other hand, it took almost a whole century to make the majority of the parties to the Paris Convention aware of the extent to which the international law of industrial protection is relevant to the transfer of technology, and consequently to national economic development. A large number of the developing countries acceded to the Paris.

Convention automatically, the same way they did to other international conventions, in the ecstasy of the attainment of national independence and without an estimation of the impact of those international conventions on their national needs.

It can be stated that both national and international law, in the present conditions, are components of the institutionalization of the existing relations based on factual inequality in the international community and that they serve as the means for new forms of neo-colonialistic exploitation. This is quite understandable when we consider the very nature of law and legal order, which are always the proponents of the institutionalization of the existing relations in a society, created by the more powerful minority; it is unlikely that they could serve as instruments for changing relations to the disadvantage of those who still occupy stronger positions in the international community.

The developed countries do not base their superiority on their size or the allocation of resources but on the technological and industrial advantages they have achieved and on their more developed social structure. Accordingly, it is in their interest to cement existing relations, and the international protection of industrial property is a really convenient instrument to this end.