As a starting point we should be clear that we mean international technology transfer, as in the flow of technological goods and knowledge across borders. Despite there being broad agreement as to the positive impact technology transfer can have, there is no universally recognized or legally enforceable definition as to what technology transfer is or what form it must take.
Within the realm of trade agreements, the closest definition was the United Nations Conference on Trade and Development (UNCTAD) Draft International Code of Conduct on the Transfer of Technology which defined it as “the transfer of systematic knowledge for the manufacture of a product, for the application of a process or for the rendering of a service and does not extend to the transactions involving the mere sale or mere lease of goods.” (Article 1.2,UNCTAD Draft International Code of Conduct on the Transfer of Technology) The full definition also includes:
(a) The assignment, sale and licensing of all forms of industrial property, except for trademarks, service marks and trade names when they are not part of transfer of technology transactions;
(b) The provision of know-how and technical expertise in the form of feasibility studies, plans, diagrams, models, instructions, guides, formulae, basic or detailed engineering designs, specifications and equipment for training, services involving technical advisory and managerial personnel, and personnel training;
(c) The provision of technological knowledge necessary for the installation, operation and functioning of plant and equipment, and turnkey projects;
(d) The provision of technological knowledge necessary to acquire, install and use machinery, equipment, intermediate goods and/or raw materials which have been acquired by purchase, lease or other means;
(e) The provision of technological contents of industrial and technical cooperation arrangements.
The draft code was never adopted but the definition of technology transfer that it generated remains one of the first and most influential iterations at a multinational level of what technology transfer means.
In the environmental arena, the clearest and most well-articulated provisions can be found in Chapter 34 of Agenda 21 of the 1992 Rio Declaration on Environment and Development. The final text that was adopted by the parties discussed the transfer of environmentally sound technology, and, in Article 34.18, outlines activities that government can take to engage in technology transfer including:
(a) Formulation of policies and programmes for the effective transfer of environmentally sound technologies that are publicly owned or in the public domain;
(b) Creation of favourable conditions to encourage the private and public sectors to innovate, market and use environmentally sound technologies;
(c) Examination by Governments and, where appropriate, by relevant organizations of existing policies, including subsidies and tax policies, and regulations to determine whether they encourage or impede the access to, transfer of and introduction of environmentally sound technologies;
(d) Addressing, in a framework which fully integrates environment and development, barriers to the transfer of privately owned environmentally sound technologies and adoption of appropriate general measures to reduce such barriers while creating specific incentives, fiscal or otherwise, for the transfer of such technologies;
(e) In the case of privately owned technologies, the adoption of the following measures, in particular for developing countries:
- Creation and enhancement by developed countries, as well as other countries which might be in a position to do so, of appropriate incentives, fiscal or otherwise, to stimulate the transfer of environmentally sound technology by companies, in particular to developing countries, as integral to sustainable development;
- Enhancement of the access to and transfer of patent protected environmentally sound technologies, in particular to developing countries;
- Purchase of patents and licences on commercial terms for their transfer to developing countries on non-commercial terms as part of development cooperation for sustainable development, taking into account the need to protect intellectual property rights;
- In compliance with and under the specific circumstances recognized by the relevant international conventions adhered to by States, the undertaking of measures to prevent the abuse of intellectual property rights, including rules with respect to their acquisition through compulsory licensing, with the provision of equitable and adequate compensation;
- Provision of financial resources to acquire environmentally sound technologies in order to enable in particular developing countries to implement measures to promote sustainable development that would entail a special or abnormal burden to them;
- Development of mechanisms for the access to and transfer of environmentally sound technologies, in particular to developing countries, while taking into account development in the process of negotiating an international code of conduct on transfer of technology, as decided by UNCTAD at its eighth session, […]
(f) Improvement of the capacity to develop and manage environmentally sound technologies
This definition in Agenda 21 has been a guide for the kinds of activities expected from developed countries in multilateral environmental agreements (MEAs) when they bargain to provide technology transfer in exchange for developing country participation. When developing countries point to lack of delivery of technology transfer they point to the failure to take the kinds of actions agreed to in Agenda 21.
In the area of climate change specifically, the International Panel on Climate Change (IPCC) has also suggested a definition in a study on methodological issues in technology transfer. (Metz et al., “Methodological and Technological Issues in Technology Transfer”, A Special Report of the Intergovernmental Panel on Climate Change, July 2000.) However, that definition has not yet been adopted by the Conference of the Parties nor the subsidiary bodies of the UNFCCC. The IPCC defined technology transfer as:
a broad set of processes covering the flows of know-how, experience and equipment for mitigating and adapting to climate change amongst different stakeholders such as governments, private sector entities, financial institutions, NGOs and research/education institutions. […] The broad and inclusive term “transfer” encompasses diffusion of technologies and technology co-operation across and within countries. It covers technology transfer processes between developed countries, developing countries and countries with economies in transition, amongst developed countries, amongst developing countries and amongst countries with economies in transition. It comprises the process of learning to understand, utilise and replicate the technology, including the capacity to choose and adapt to local conditions and integrate it with indigenous technologies.
Building on the UNCTAD Draft Code of Conduct and on Chapter 34 of Agenda 21, I propose the following understanding of what constitutes technology transfer defining a package: four modes of technology transfer, the balance of which can be varied according to the specific needs of the country. All must take place to ensure successful technology transfer, diffusion and uptake. The modes of technology transfer are:
- Transfer of Physical Capital and Goods (outside of the firm or wholly owned subsidiary) including, but not limited to: specialized equipment; goods embodying or incorporating the relevant technology or idea. This largely entails financing for purchase of such goods.
- Transfer of Skills and Know How (outside of the firm or wholly owned subsidiary) including, but not limited to: licensing or assistance with the purchase of proprietary knowledge, provision of technical and manual skills training; scientific and academic training; training and technical advice and assistance, necessary to maintain, operate, adapt and reproduce a viable system or technology. This would include scientific and educational exchanges, workshops, field education, funding, training and capacity building all along the research chain: – research, development, demonstration, deployment, and commercialization. This is largely aimed at ensuring learning – acquisition and application of know how leading to an understanding of the principles of why the technology works and building the capacity to adapt and replicate it.
- Transfer of Information and Data (outside of the firm or wholly owned subsidiary), including but not limited to: manuals; designs; blueprints; operating instructions; scientific and technical publications and reports. This would include greater access to scientific and technical information, patent office publications and data. This is embodied in the formal documents and detail of patent information, licenses, as well as information to learn how to operate, adapt and replicate the technology. This is meant to provide a durable basis for building on and being able to adapt the technology.
- Transfer of ability to adapt and improve the technology including, but not limited to: no limitations on production and export under licenses for domestic use or export to other developing countries; no restrictions on improvement and ownership of improvement of the technology; establishment of R&D facilities in the country in which the project is placed; creation of joint R&D project or projects.
The definition incorporates the vector and the content of technology transfer. It takes into account that there are conditions to be met in developing countries but does not require those to be in place before technology transfer activities can take place. While proprietary knowledge is part of the kinds of content transferred, it forms part of a broader package of measures. Most importantly it ensures that technology transfer is something that goes beyond basic hardware sales and servicing, and aims at actual transformation of know-how and skills related to production. Implicit in this is that such transfer entails spillovers beyond the boundary of the firm to other actors. I also include in here the idea that it is not sufficient to simply allow a wholly-owned subsidiary to exercise the technology where this does not result in learning beyond the boundaries of the firm. This is an instrumental choice based on what the actual goal meant to be achieved is.
Recommended Citation: Dalindyebo Shabalala, “Defining Technology Transfer in the Climate Context”, Technology Transfer for Climate Change (Jun. 24, 2015, 1:56PM), http://wp.me/pLpnk-S
Technology, Sustainability & Human Rights 