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Monday, 15 November 2010

Tech Transfer Times Two: a couple of book reviews

Competition Law, Technology Transfer and the TRIPS Agreement: Implications for Developing Countries is the title of a very good book by Tu Thanh Nguyen (Faculty of Law, Lund University, Sweden and Ho Chi Minh City School of Law, Vietnam).  A revised version of the author's 2009 doctoral thesis, it is a carefully thought-out document which reflects a maturity of approach towards an extremely difficult topic.

According to the publisher,
"The book investigates competition law and international technology transfer in the light of the TRIPS Agreement and the experience of both developed and developing countries. On that basis, it draws relevant implications for developing countries.

Tu Thanh Nguyen argues that technology transfer-related competition law should be ‘glocalized’ appropriately for the needs of local contexts, while intellectual property rights (IPR) are globalized [This is an interesting thesis; one can argue that the EU itself practises 'glocalization' of competition rules, particularly through the de jure structure and de facto operation of the Technology Transfer Block Exemption, while signing up for international Paris/Berne/TRIPS-driven IP norms -- but its significance is probably the subject for another book]. The book reveals that developing countries, according to the TRIPS Agreement, have the right to use domestic competition law to promote access to technology in order to protect national interests and consumer welfare. However, competition law is antitrust. It is neither anti-IPR nor anti-trade [If one takes a functional definition, based on what competition law does, rather than a conceptual one, this is a good debating point]. The author finds that developing countries with limited competition law resources should set realistic priorities for the control of technology transfer-related anti-competitive practices. They can reasonably apply and adapt relevant regulations, decisions and judgments from developed country jurisdictions to their own circumstances [The key here is identifying 'realistic priorities' and then being able to justify them when aspiration runs ahead of capability in the technology recipient country].

Competition Law, Technology Transfer and the TRIPs Agreement is a timely resource ['timely resource' means 'we got it out just in time for the students to buy it ...] for postgraduate students, practitioners, and scholars in international competition law, IPR, and technology transfer. Policymakers in the field of technology transfer-related competition law/policy, especially in developing countries, will also find this book invaluable".
Although the under-resourcing of IP granting facilities and enforcement mechanisms in developing countries has led to devices that minimise the inconvenience faced by IP owners in developed countries (eg the Patent Cooperation Treaty, Hague, Madrid, increasingly powerful border controls and the prospect of ACTA), the fact that developing countries have correspondingly limited competition law resources is not something that immediately springs to mind as a problem, and the author has been wise to touch on this issue.  Many developed countries have had the best part of a century or longer to experiment with the balance between IP and antitrust, but for most developing countries the luxury of time is not available and they are forced to choose between experimenting for themselves and extrapolating principles based on the experience of others. Whichever path they take, this book will help to guide them.  Historians too will find much of interest: here is an author who has not neglected the sad and largely forgotten experiment of the UNCTAD-supported ToT Code in the 1980s, which ran aground following a three-way split between the haves, the have-nots, and the have-somes of the Eastern European socialist bloc.


Bibliographic data.  Edward Elgar Publishing 2010.xv + 346 pages. Hardback. ISBN 978 1 84980 125 6. Price £85 (this comes down to £76.50 with the publisher's online discount). This book is also available as an ebook, ISBN 978 1 84980 544 5. Rupture factor: small. Web page here.


International Trade Policy for Technology Transfers: Legal and Economic Dilemmas on Multilateralism versus Bilateralism, by Yi Shin Tang, bears some similarities to that of Tu Thanh Nguyen.  It too has emerged from a doctoral thesis and its publisher, Kluwer Law International, shares with Edward Elgar Publishing an affection for titles in the "law meets economics meets trade policy" area.  Both authors have a good eye for the relevant point and a keen appreciation of the interests of the developing, as well as the developed, worlds.  But there the simlarities end.  As the publishers explain:
"The importance of international technology transfer for economic development can hardly be overstated. But the wide range of interests among developed and developing countries has long been the cause of enormous political obstacles to the conclusion of efficient international agreements dealing with technology transfers [Some might argue that, for some, more important than the actuality of international transfer of technology is its use as a 'bait' to encourage what is regarded as positive conduct on the part of prospective transferees].

This book provides a robust guideline to both policymakers and researchers wishing to identify and categorize the factors that influence the process of technology flows across national boundaries, as well as the economic theories and legal arguments that may support a given position in international forums. In particular, the work discusses how certain negotiation strategies may optimally deal with such barriers and lead to more effective institutional arrangements in the current global geography of technological development [there's a bit of game theory here, though this depends on negotiators wishing to take the optimal path ...].

The book features a strong balance between legal and economic theories, ranging from the analysis of judicial cases before the WTO Dispute Settlement System, to the manipulation of complex econometric methods and statistical tools. It covers and attempts to describe almost every relevant legal statute on the subject, thus providing an essential technical tool for decision makers and lawyers working in the field of international technology transfers, as well as to students. Furthermore, given the increasing worldwide attention to the negotiations taking place in the WTO, the book may serve as a valuable source of argumentation for both developed and developing countries in the yet unexplored relationship between foreign investments, technology licensing and international trade".
For this reader, who finds the legal end competition policy easier to grapple with than the economic basis for it, this was quite a challenging read.  It was however good to see an intelligent application of game theory in an analysis of cooperative behaviour -- since game theory is agnostic and can be equally well applied to any area of tech transfer in which decisions have to be made by players. But are the players the countries themselves or the owners of the technology itself?

Bibliographic data.  Published 2009, ISBNs 9041128255 and 13: 9789041128256.  P $172. Hardback, xvi + 232 pages. Web page here. This book is part of the publisher's Global Trade Law Series and you can  read a very full and positive account of it by Professor Thomas Dreier on JIPITEC here. Rupture factor: small.

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