What do we mean when we say Intellectual property is (or is not) a barrier to technology transfer?

One of the key questions in technology transfer and climate change is whether intellectual property presents a barrier to technology transfer to address climate change.  In some minds the issue has already been settled by studies showing that patenting of the relevant climate technologies is low or non-existent in low-income developing countries, or that where patents do exist, there appear to be few or no reports of patents being a problem. (see chapter 3 of my PhD in the first post on this blog).  The problem is that viewing the issue as primarily an empirical one ignores the underlying nature of the problem of technology transfer in terms of scale, timing, and targets.  I argue that you cannot empirically assess the nature or extent to which IP may be a barrier until you properly define the goal of technology transfer: getting the right technologies to the right countries at the right time.

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Defining Technology Transfer in the Climate Context

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.

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