The Trips Agreement, International Technology Transfer and Development: Some Lessons from Strengthening ipr Protection
| Author | M. Shugurov |
| Position | Saratov State Law Academy (Saratov, Russia) |
| Pages | 90-125 |
BRICS LAW JOURNAL Volume III (2016) Issue 1
COMMENTS
THE TRIPS aG REEMEnT, InTERnaTIon aL TECHnoLoGY TRan SFER
anD DEV ELoPMEnT: SoME LES SonS FRoM ST REnGTHEnInG
IPR PRoTECTIon
MARK ShUG UROV,
Saratov State Law Academy
(Saratov, Russia)
DOI:10.21684/2412-2343-2016-3-1-90-125
The arti cle focuses on th e i mpact of the TRI PS Agreement pr ovisions on fu rther
development of international technology transfer (ITT) mainly to developing countries.
The authors review the critical specicity of ITT connected with the adoption of TRIPS.
Much attention is paid to an analysis of what is most discussed among international
experts in the area of the issues on the dual results of stronger intellectual property rights
(IPRs) concern ing various grou ps of developi ng countries. Th eir study als o examines
a number of problems with implementation of the TRIPS provisions, conducive to ITT, in
the context of the TRIPS-plus era as a new stage in strengthening IPR protection. Bearing
in mind the fragmentation of the international regime of IPR protection because of the
adoption of numerous regional free trade agreements, the authors outline the possible
position of advanced developing and least developed countries with respect to using
TRIPS potentials for development of ITT under reasonable and just terms, with the aim
of overall prosperity.
Keywords: intellectual property rights, patents, TRIPS Agreement, developing countries,
technology transfer, proprietary technology.
Recommended citation: Mark Shugurov, The TR IPS Agreement , I nternatio nal
Technology Transfer and Development: Some Lessons from Strengthening IPR Protection,
3(1) BRICS Law Journal 90–125 (2016).
MARK ShUGUROV 91
Abbreviations
ESTs – Environmentally Sound Technologies
FDI – Foreign Direct Investment
FTAs – Free Trade Agreements
GATs – General Agreement on Trade in Services
ICTs – Information and Communication Technologies
IP – Intellectual Property
IPL – Intellectual Property Law
IPRs – Intellectual Property Rights
ITT – International Technology Transfer
LDCs – Least-Developed Countries
R&D – Research and Developments
TNCs – Transnational Corporations
TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights
UN – United Nations
UNCTAD – United Nations Conference on Trade and Development
WHO – World Health Organization
WIPO – World Intellectual Property Organization
WTO – World Trade Organization
1. Introduction
In today’s cond itions of the dynamic development of global processes in the
research and development (R&D) sp here and of economic globalization, there is
an increasing signicance of international technology transfer (IT T) by which the
exchange and diusion of technologies, innovation and knowledge are occurring
around the world. The attention of the contemporary world community given to
ITT is caused by those circumstances that technologies, be they information and
communication technologies (ICT) or environmentally sound technologies (EST), are
a deciding factor of economic and social development, and, of course, of dierent
problems in need of solutions at the regional and global levels. ITT, being a necessary
tool for speeding up the pace of economic, technological and social development,
is one of the instruments for arriving at the Millennium Development Goals and,
especially, the goals of sustainable development, as those have been assigned in the
Agenda XXI and other international documents pertaining to so-called international
law on sustainable development.
As a rule, national technology transfer (NTT), occurring within countries, and ITT,
occurring between countries, in this era of economic and technological globalization
are in intersection, while both maintain a certain specicity. The providing of access to
BRICS LAW JOURNAL Volume III (2016) Issue 1 92
technology, especially for developing and least developed countries (LDCs), is a very
important item on the agenda of global policy in the area of aid to development.
The catalog of mo re sens itive te chnologies for developing countrie s inclu des
technologies for sustainable forest management and use of forests, ICT, technology
for water treatment and waste management, clear and renewable energy technology,
biotechnology, marine technology and health technology, among others.
Additiona lly, it is tr ue to say th at the transfer of te chnology to devel oping
countries is one of the most a ctively discussed issues of international econom ic
relations in the area of development aid in the last fty years. Developing countries
hold in this matter a very active position. Since 1970, they have expressed – at various
international forums – their intentions to improve access to foreign technolo gies
with the aim of enhancing their technological capabilities. Technology transfer at the
international macro-level was and is a focus of negotiations between developed and
developing countries in the contexts of technical cooperation, trade liberalization
and protection of the environment. This has resulted in elaborating the macro-level
political bargaining model of ITT.
Obviously, technolog y transfe r due to th e abovemen tioned s ignicance of
technologies for the economy and development has become one of the sectors
of modern gl obal economic s, s cience and techn ology polic y – inc luding its
development component. Interestingly, IT T, being the separate subject matter of
the global agenda on world economic policy at large and world development aid
policy in particular, as testied by P. Roe ver y reasonably,1 is one of the major
concerns of global policy on intellectual property rights (IPRs) and their protection.
It is fully clear that ITT as a critical factor of a sustainable rate of economic growth
and development is very sensitive to protection of IPRs, that is to say, protection of
the exclusive rights, and especially to increasing their protection.
It may quite rightly be said that the contemporary concept of technology transfer
includes within its broad view IPRs, especi ally exclusive patent rights and trade
secrets, and, to a certain degree, copyright addressing ICT and software in a kind of
integrated perspective of technology transfer. Besides the approach to the transfer
of technology as a transfer of technical information and technical knowledge that are
the results of intellectual activity, a great signicance has been placed on specifying
the issues on what IPRs mean as to technology transfer. Hence, there is reason to
say that the complex global policy in the areas of IT T and intellectual property (IP)
intersects with the global policy on development aid.
With the widening of transnational trade ows, especially ows of sophisticated
production, technology and exclusive rights to it, the linkage between patents and
technology transfer has received overarching recognition, not only at the national
1 Pedro Roe, Comment I: Technology Transfer on the International Agenda, in International Public Goods
and Transfer of Technology under a Globalized Intellectual Property Regime 257–281 (Keith E. Maskus
& Jerome H. Reichman, eds.) (Cambridge University Press 2005).
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