|Science and Technology in the Transformation of the World (UNU, 1982, 496 p.)|
|Session II: Technology generation and transfer - Transformation alternatives|
|Legal aspects of the transfer of technology in modern society|
With regard to the difficulties and peculiarities of each of the developing countries, and having in mind the impossibility of presenting a thorough recapitulation of the state of affairs and possible solutions, we shall confine ourselves to a few proposals devised to help increase the effect of imported technology in developing countries.
The pre-condition of any "successful" transfer of technology, from the viewpoint of the country importing technology, is an indigenous concept of the economic development of the country and of the role of the transfer of technology in that development. An insight into the capabilities and needs of national industrial production, on one hand, and of the scientific and technological realities (the fund of available technology, the conditions for its distribution in the world, etc.) on the other, is the decisive factor in the creation of such a concept. The data obtained are the basis for national development plans concerning the growth of industrial production and they denote, roughly, the kind and quantity of the technology needed in a forthcoming period.
A further consideration of particular importance is the information possessed by the country importing technology. Who owns the technology needed and whether there are other companies having similar technologies that could be also used are among the most important facts to be determined. It is also necessary to investigate the possibility of complementary purchases, seek information on the conditions for the transfer of technology, etc. All these enable the receiver of technology to achieve a degree of lesser dependence and to obtain technology under more favourable conditions.
As far as legal regulation is concerned, the very existence of this regulation in the receiving country is stimulating by itself, because it offers a sense of security to the foreign partner and makes the process of transfer easier altogether. The legal rules on industrial property and the transfer of technology ought to correspond, to the greatest possible extent, to the needs of the national industrial and economic development, i.e., to be the legal manifestation of the above mentioned concept of national economic development. Furthermore, they should take account of the generally accepted international principles of law on industrial property, striving to conform those principles to the interests of all the members of the international community.
Experience has demonstrated that it would be to the advantage of the developing countries if their internal rules were extended to regulate, inter alia, some questions which have been left aside until now: the limitation of the duration of a contract on the transfer of technology (it seems that five years could be the maximum duration); the granting of license for a trade-mark only in exceptional cases, i.e., when it is in the interest of the country and not solely of the parties to the contract; the trend of introducing provisions on the co-operation of the partners in domains of science and research in every contract for the transfer of technology; and, finally, not registering any contract containing a "grant-back'' clause. The question of compensation for the technology supplied could be solved by legal instruments in such a way as to make it dependent on the efficiency of the technology transferred to the developing country. In such a way both the foreign and the domestic partner would be interested in the effect of the application of technology.
In a large number of contracts on the transfer of technology to the developing countries, there are provisions placed on the loan that is made for the purchase of the technology. This practice is really dangerous for the domestic partner who is making the contract with the particular owner of technology willing to grant him a loan, irrespective of restrictive conditions for the implementation of the transfer.
Concerning the contractual modalities for the transfer of technology, it seems more suitable for the developing countries to acquire technology by complex international business law agreements - such as an agreement on long-term co-operation in production or on a joint investment of the resources of a foreign partner with domestic enterprises - than traditional licensing agreements, agreements on patents, trade-marks, know-how, consulting-engineering, management, etc. In the traditional agreements the relations of the partners are, by the nature of the agreement, based on parity and commercial character, but that is not the case in agreements with enterprises from developing countries. The foreign partner should be induced to become interested in different forms of economic co-operation with domestic enterprises; such co-operation could be useful in many respects for the domestic partner.
The introduction of institutional measures is of particular significance for the transfer of technology to developing countries. Such measures have already been implemented in some countries, but reports would indicate that they are not functioning perfectly. In most developing countries, the import of technology is not subject to control at all. On the contrary, domestic enterprises are given the initiative for concluding and the responsibility for implementing contracts for the transfer of technology. This is one of the most serious mistakes made by developing countries with respect to the transfer of technology, but they seem not to be aware of long-term negative effects of such a policy. Governmental and other public interest organs and institutions should have an important, even decisive, role in some phases of the transfer. In the first phase of negotiations between the future partners, governmental organs would have to play an advisory role and to stimulate the conclusion of agreements that provide for the use of domestically available resources and stimulate the development of existing "accompanying" industries in the country. In the second phase, upon the registration of an agreement, governmental organs should have the decisive words taking into account the interests of a domestic enterprise and those of the whole country. In the phase of the implementation of the agreement, the role of the organs and/or institutions would also have to be significant. They could have the competence of imposing sanctions on those contractual relationships which do not implement the provisions of the registered agreement.
Instead, in a considerable number of developing countries we witness the role of governmental institutions reduced to the registration of agreements on the transfer of technology. During such registration, automatism and bureacratism are strongly evidenced. In contrast, in developed countries, where such a system of protection by governmental and societal institutions does not seem necessary (e.g., Japan, France, the United States), the system of control of concluded agreements is much more strict and consistent.
On the other side, changing the sources of international legal regulation of the transfer of technology is a really difficult task, accompanied by much resistance in the developed countries, which are not ready to exchange their monopolistic positions for relations of equality by granting the developing countries preferential treatment. The developed countries, under the pressure of the climate created in the international community, which was in turn initiated by the United Nations, give small cessions from time to time and/or accede to compromises. The basic tactics of the developed countries is gaining time by the prolongation of any process.
On that account the developing countries should act concertedly. They should analyse the national problems and find a common denominator, establish a concept of the acquisition of foreign technology, and, on the way, achieve appropriate arrangements and conditions for the acquisition of technology. Although it is stated that the developing countries purchase only one-tenth of the technology circulated by industrially developed countries, we deem that the task of such a datum is to minimize the importance attached to the creation of new rules of behaviour in the transfer of technology by developing countries. The developed countries are by all means interested in the market for technology in developing countries, and that is the principal reason for their persistent resistance to changing the existing rules.
The formulation of a common platform among developing countries would ease their acquisition of technology and lead to more equalized and equitable conditions for the transfer of technology. However, the developing countries have not, so far, demonstrated enough understanding for co-operation but act independently or in small regional groupings. This suits the developed countries.
It is certain that the achievement of the first agreements among developing countries is not a simple task that can be accomplished quickly. On the contrary, it is a gradual process of conforming their needs and abilities, and at the same time bridging over differences political, geophysical, economic, social, etc. But it is plausible that co-operation among the developing countries will influence speedier changes in the rules of behaviour in the international transfer of technology, and their changing according to the demands of the developing countries. In other words, the voice of the developing countries on the revision of existing international agreements, primarily of the Paris Convention, and on the drafting of new international conventions would be heard and respected much more.
The developing countries that are non-aligned should intensify their endeavours in that respect and prevail on those developing countries that, by their passive attitude on the question of the transfer of technology, are worsening not only their own position but the position of developing countries as a whole. Furthermore, the existing differences among the developing countries with respect to their stages of economic development should be considered, and various forms of aids should be given to the most underdeveloped countries accordingly. In such a way, the sense of co-operation among developing countries would be demonstrated in practice.
In our opinion, the only possible way to "cure" the relations of inequality existing today is to grant preferential treatment to the developing countries and/or their subjects. However, the proposal to give subjects of the developing countries treatment better than that enjoyed by the subjects of the developed countries encounters considerable resistance from the interested parties in developed countries. The opponents of the proposal are found, to a considerably lesser extent, even in some developing countries which are under strong cultural and economic influence of the super-powers. They represent themselves as the protectors of democratic achievements of the nineteenth century proclaiming universal equality and of the legal tradition in general.
The question of the exchange of information in the field of technology is often neglected in discussions on this subject. The developing countries do not attach enough significance to information, in most cases because of the lack of appropriate national services and experts, and do not demonstrate sufficient interest in that matter on the international level either. It is certain that the solution to the problem of information cannot be an overall solution in the transfer of technology, but it is certain as well that the use and disposal of information bears considerable advantage today. The fact that every year approximately a million new documents, containing descriptions of 200,000 to 300,000 inventions, are published should not be overlooked by the appropriate services in developing countries. For that reason we deem good organization of such services in developing countries, with financial and expert help from international organizations and expert bodies, really important. Furthermore, cooperation among the developing countries in the circulation of information and, finally, free acquisition of all available data in the field of technology transfer from developed countries should be additional steps.
Having the problem of information in mind, the United Nations in its seventh special session, in September 1975, envisaged the establishment of a "bank" of industrial and technological data and, eventually, the creation of regional and sector al banks in order to enable developing countries to keep up with the available and advanced technologies in the developed countries (resolution 3362). In such a manner, the activities of the developing countries in the field of information should be intensified, particularly with respect to information in the field of technology.
A detrimental circumstance for developing countries, although it may not be recognizable at first sight, is the fact that the problem of the transfer of technology is being considered along parallel lines in several international forums, on several different levels. There are separate groups of experts, and, although they are working on the same or similar questions, they co-operate very little or even have no contact at all. Thus, international action for the solution of the problem of the position of the developing countries on the transfer of technology is being watered down, and the links between the developing countries - weak as they are - are being disrupted. Finally, this duplication of effort consumes a lot of energy and resources, which is probably close to the intentions of the developed countries.
The efforts to draft a Code of Conduct for the International Transfer of Technology are one of the most interesting questions for the developing countries at present, not only because of their actuality (a recently held diplomatic conference on the Code) but also because of the scope of questions that are to be solved. The essential point has already been stressed: any code without preferential treatment for the developing countries should be boycotted by developing countries. All the rest of the principles proclaimed in the Code of Conduct such as the granting of a free flow of information, and an effective contribution to the development of a scientific and technological base and infrastructure in the developing countries - are found in other international instruments, the implementation of which has not significantly changed relations between developed and developing countries in the transfer of technology.
A question that has been in the cent re of all discussions for a long time, on which the developing countries have not finally agreed or taken a definite attitude, is the problem of universality in the application of the Code and the binding nature of its provisions. Having in mind, on the one hand, the interest of developing countries in the adoption of an international legal instrument for the regulation of the transfer of technology and, on the other, the existing situation in the sphere of possession and allocation of technology, it seems that the only possible solution is a flexible attitude towards the application of both principles - universality and binding nature. To insist on the binding nature and universality of the application of the Code is not consistent with the situation in the field of the transfer of technology, and it would have two adverse consequences for the developing countries: first, it would increase the slowing down and maneuvering; and, secondly, what is much more important, it would result in the watering down of the principles and rules contained in the Code.
Developing countries are going to be obliged for the years to come to keep on importing technology from developed countries, as well as to strengthen their scientific-technological base. The lack of an international legal mechanism to administer the transfer of technology worldwide enables the developed countries to exercise their monopoly and impose various restrictive clauses dictating conditions that limit the development of a scientific-technological base of developing countries.
In the effort to establish a new economic order, developing countries put the emphasis on the revision of existing international conventions and the promulgation of new international documents in the matter of technology transfer between developed and developing countries.
It is not surprising that developed countries are not prepared for radical changes in these matters, as they show through prolongation tactics, small concessions which usually result in vague declarations, and resolutions avoiding any concrete obligations toward developing countries.
Drawing a conclusion, we have to point out that the question of legal regulation of technology transfer becomes more and more difficult because of new social set-ups in developing countries, such as fast growing urban development, the changing role of education, and other factors that should be considered in determining the role of technology in modern society. In order to benefit from imported technology, the transfer must be adapted to national interests coexisting with national culture. International and national legal regulation has to take these factors into account.