Open-ended Forum on Proposed Development Agenda Projects

1. Open-ended Forum on Proposed Development Agenda Projects WIPO, 13-14 October 2009 Pedro Roffe Senior Fellow ICTSD

2. Outline • Transfer of technology (tot) issues in multilateral deliberations • Some conceptual considerations • The WIPO Development Agenda and the Organization’s role: the thematic project • Conclusions

3. Transfer of technology issues in the multilateral deliberations

4. Past attempts • International transfer of technology in the 1970-1980: a code of conduct • Controversial process: What it really meant? • Broad guidelines to international transactions • rights and obligations of parties • a pro-competitive framework to international transactions

5. Tot issues in international instruments and ongoing negotiations • The 1982 Law of the Sea Treaty (Part XV: Development and Transfer of Maritime Technololy) • International Environmental Agreements • TRIPS: articles 7 (objectives) and 66.2 (LDCs) • Climate change negotiations: road to Copenhagen and beyond

6. Some conceptual considerations

7. Conceptual questions not generally discussed • Technologies not simple commodities to be transferred as single units • Include, among others, tacit components requiring extensive learning efforts to be properly understood and effectively used • Embodied in goods and services, codified in blueprints, designs, know-how and technical documents • Tot generally relates to processes enabling technological knowledge moving from one entity –legal or natural- to another

8. Transfer of technology definitional questions • Transfer of technology is the transfer of systematic knowledge for the manufacture of a product, for the application of a process or for the marketing of a service [and does not extend to the transactions involving the mere sale or mere lease of goods] • Draft Code of Conduct

9. Intergovernmental Panel on Climate Change • Broad set of processes covering the flows of known-how, experience, and equipment for mitigating and adapting to climate change among different stakeholders such as governments, private sector and enterprises, financial institutions, NGOs and research/education institutions

10. Key aspect: domestic capacities • In order to absorb and master external knowledge, innovate and potentially commercialize results • Acquisition of knowledge and development of domestic capabilities are complementary and should be part of efforts to improve technological base of developing countries

11. Three main channels/ modalities: international transfer of technology • market-based transactions • non-market or informal transfers • initiatives by international or non-profit organizations

12. a) Market/commercial transactions • Driven by private actors taking place mainly via: • trade (acquisition of capital goods) • technical consultancy • licensing of IPRs including know how • international subcontracting and various forms of foreign direct investment (e.g., turnkey projects and joint ventures)

13. Market/commercial transactions • Market-based transactions take place within an organization or with third parties. • Former consists of dissemination of knowledge within the organization to its different sub-units (e.g., the parent company to its subsidiary) • Arms-length transactions take place (e.g., from one firm to another independent entity)

14. Market-based technology flows operate under new conditions, different from the past • Complex network of global production and supply chain with new forms of industrial organization, production networks and the engagement of different actors • Trade liberalization • Liberalization of foreign investment flows • Accelerated innovation in ICT • Reinforced IP mechanisms

15. b) Non-Market/informal modalities • Driven by curiosity and interest of entities in acquiring technology by searching, identifying and obtaining available technical knowledge. • How this takes place? • Depends on ingenuity and technical capacity of the entity to use the available knowledge to its advantage. • It happens by reverse engineering, legally copying, and upgrading existing products and services

16. Main sources of non-market/informal modalities • Technical information contained for example in patent databases • Technical and scientific publications including via Internet • Technical visits, including studies in institutes of high learning • Migration of skilled labour • International fairs • Compared to the other modalities, informal ones could represent the hidden part of the iceberg and interventions by governments and IGOs could be broad

17. c) Third modality: IGOs, development assistance agencies, NGOs • Cover different initiatives to disseminate technical knowledge in a variety of forms: support or cooperative relationships with universities, research centres, enterprises, training and capacity building • Projects could be component of ODA and of development projects by NGOs and IGOs through financing, training and support for acquisition of capital goods, licensing, dissemination of the results of publicly funded R&D, and promotion of public-private partnerships. • Role of multilateral funds, e.g. in the case of IEAs • Modality could include support to market and non-market modes

18. Some general observations on these conceptual considerations • IP would play different roles but will be influential under the different modalities • IP is one factor among many that would facilitate or restrain tot • Its role more prominent in market based transactions • Difficult to isolate IP issues from its whole and from others factors constituting the enabling environment (market size, local capabilities, property and contract law and legal enforcement in general)

19. Local conditions in developing countries • For transfer of technology to succeed some considerations need to be borne in mind: • A working national innovation system • Design of the IP system in ways that promote a pro-competitive environment, provide legal security and facilitate diffusion and dissemination of knowledge (e.g. criteria for patentability, exceptions –research-, disclosure, working requirements) and how its interacts with competition policies)

20. The WIPO Development Agenda and the Organization’s role: the thematic project

21. The WIPO Development Agenda (WDA) • Proponents of the WDA thought that transfer of technology was key for developing countries integration to the global system • The issue is not new but circumstances might be different • Under those new circumstances what role for WIPO?

22. Role for WIPO • Field is vast and difficult to isolate one issue from the complexities of transfer of technology and its interfaces • Major role, among others • Contributing to the design of IP systems that promote transfer, diffusion and dissemination of technology • Facilitating the appropriate use of patent data • Making IP offices instruments that facilitate the commercialization and transfer of technologies (brokering knowledge with prospective users, mainly SMEs)

23. The thematic project • Interesting and promising initiative for the identification of possible areas of intervention • Open and inclusive approach is welcome • The conceptualization of the different phases is innovative • The consideration of mapping out the field and undertaking studies to better know what WIPO could do in this field is a good approach

24. In view of conceptual observations there is a difficulty of isolating some issues from others • Tot is a multifaceted process where conditions for absorption, adaptation, diffusion, are not easy to separate. Requires a holistic vision • Conditions differ among countries: need to have a typology of developing countries, their needs, conditions • Studies are relevant. Need to have a review of existent literature and case studies from IGOs (UNCTAD, UNDP, UNIDO, FAO, WB, WHO, WTO), NGOs, academia • No need to reinvent the wheel

25. The mapping out of existing and relevant work will be crucial in the success of the project • It should include a synopsis of the main findings and their relevance for further work • Process should be inclusive, particularly involving close pre-consultations with organizations that have carried out significant work • The proposed High Level Expert Forum is also interesting but should not be a public relations exercise but a truly working and inclusive process open to exchanges and feedbacks • The so-called New Platform for ToT and IP collaboration sounds at this stage loose and vague

26. Conclusions

27. Tot as a concept might be deceptive • It is a multifarious process involving one organizational entity transferring knowledge and the capacity of the other entity to absorb and master that knowledge • It is not automatic nor costless

28. Drawing from past experience, existing mechanisms and international commitments there is need for humility and to launch new initiatives free of dogmas and preconceived ideas • Difficulty in isolating issues from the complexities and interrelations that exist between different components of the problematique and possible public policy interventions • Important work do exist in this area. Need to build on what exist

29. Selected papers by ICTSD-UNCTAD ● • Technology Transfer and IPRs: Lessons from Korea’s experience, Issue Paper 2, 2003 • Encouraging International Technology Transfer, Keith Maskus, Issue Paper No. 7, 2004 • Nutrition and Technology Transfer Policies, Issue Paper 6, 2004 • New Trends in Technology Transfer, John H. Barton, Paper 18, 2007 • Intellectual Property and Access to Clean Energy Technologies in Developing Countries An Analysis of Solar Photovoltaic, Biofuel and Wind Technologies, John H. Barton, Issue Paper 2, Trade and Sustainable Energy series, 2007 • Does TRIPS Art. 66.2 Encourage Technology Transfer to LDCs, Policy Brief 2, 2008 • Technology transfer in the TRIPS age: the need for new types of partnerships between the least developed and most advanced economies, Dominique Foray, Issue Paper 23, 2009 • Innovation and Technology Transfer to Address Climate Change: Lessons from the Global Debate on Intellectual Property and Health, Issue Paper 24, 2009

30. http://www.iprsonline.org/index.htm