«Russia and the World Community’s Respond to a Challenge of Instability of Economic and Legal Systems Materials of the International Scientific-practical Conference ...»
This method is usually called “Firm Special Technology” which is supported by secrecy and its owners avoid transferring the knowledge to others. Part of this method is learning by action. Interaction between domestic and foreign agencies will also help with learning about foreign technology. Third, it is done through foreign direct investments 179. Basically the company owning a technology does not consent to hander-over of the technology or its transfer, unless the technology is old or commonplace (public domain). Unfortunately, despite making job opportunities and attracting financial resources in host countries which may bring about foreign direct investment, it has a very subtle role in bringing a suitable and cheap technology, and as some of developing countries’ experience shows, in many cases the same old technology is sold to this countries at a high price rather than its real value. Fourth, it is done through direct exchange of technical know-how which is implemented by agreements for license of techAmeri, Faisal. (1999)“Law of Oil, and Gas” Tehran,Faculty of Law, Alame Tabatabayi University,p24.
Amari Faisal, “direct investment and Transfer of technology”, Tehran, Journal of Law and Policy studies,no 5, 2003,p230.
nology, patents, business secrets, copy-right, or trade-mark. Making a choice among these options, according to situations in each country, depends on case studies to realize which economic channel is more suitable for each industrial activity. It is over a hundred of years passing by drilling the first oil well in Iran and national oil industry is considered the main pivot of economic development of the land by having %13 and %18 of total global oil and gas reservoir. Exploitation and transformation of the resources into the products with high value added requires using advanced technologies; but unfortunately technological capabilities of the industry in Iran has not been at the level of capabilities required for commercializing new technologies, but it has also been at the level of producing products with low or average value level, mainly. The obvious technological gap has inevitably led the managers of the industry to imported technologies in form of a variety of transfer of technology projects for ages; however, the problems and issues existing in transmitting and naturalizing modern technologies as well as imposing heavy expenses of buying the technology have kept the industry at the level of foreign technologies importer. Studying the history of the oil contracts, we will clearly find out an insight shift in the industry from privileged contracts to modern contracts based on more interactions. On the other hand, being at a suitable status itself is another objective that is sufficiently expressed in the document of 20-year landscape of the country: "achieving the first rank in oil industry of the zone using human, financial and industrial capabilities and creating value added as a result of issuing technical knowledge at an extensive level with an increase in the share of technical knowledge release ". Creating capacities required for the realization of oil industry research and technology landscape based on the existing capacities necessitates the acquisition of technology through international transfer of technology. High volume of the oil reservoir, existence of common fields and long life of oil fields are among the important reasons for attending the technology in the area of oil industry. On the other hand, imposing sanctions in the field has led advanced technologies acquisition required in the sector to be achieved with difficulties.
Several reasons have been addressed regarding the failure of transfer of technology in buy backcontracts as the commonest oil contract in Iran the most important of which (from perspective of Oil Industry's International Affairs) as are as follow:
1- Non-feasibility of planning for technical knowledge transmission of the tanks and production (cause of the short term of the contract) 2- Absence of proper understanding and lack of mechanisms and technical knowledge transmission indices and training and assessing the manpower 3- Lack of incentive factors (intrinsic and extrinsic) for transfer of technology 4- Non-planning for setting the context required for technology attraction 5- Inflexibility in financial problems related to transfer of technology costs 6- Absence of the flexibility required for using new information of the field for technical transmission Among the most important solutions proposed by Oil Industry's International Affairs deputy to remove the above mentioned problems is the determination of suitable structure for implementing transfer of technology of the project in the buy back contracts Section I – Conventional Contracts in transfer of technology:
Paragraph I- Buying Invention Right (or other Intellectual Property Rights): Of the simplest forms of transfer of technology is to completely purchase the exclusive rights related to a registered invention from its owner. When all the exclusive rights of an invention are transmitted from the owner to another legal or real entity without any limits of time or the other kinds, it is said that the rights are "assigned". This method of assignment has been recognized in the rules of many countries. The method is also used for assigning the exclusive rights related to examples of utility models, industrial designs, and trademarks and other types of industrial properties.
Paragraph II – Exploitation License Contract: The second legal method is through exploitation license; namely, issuing the license from the owner of a registered invention for another person or legal entity (in a country and for the time period when the invention-related rights are valid) to administer one or more cases through the exclusive rights related to the registered invention in that country is covered. When the permission is issued, the "exploitation license" has been granted. Paragraph III – Technical Knowledge Contract (know how agreements): The third method out of the main legal triple methods for acquiring and transmitting the technology is regarding the technical knowledge. If the conditions related to technical knowledge are provided in a transcript with a separate distinct document, then the document or the transcript will typically be called "technical knowledge contract". Through such conditions, a party (i.e., supplier of the technical knowledge) is committed to transmit the technical knowledge to the other party (i.e., receiver of the technical knowledge) to be used. Technical knowledge may be transmitted in a tangible form. Documents, pictures, maps, computer cards and microfilms are among the tangible forms. Although can be a tool for technology, it is also considered as a means of gaining competitive privileges in global economy. In its tangible form, the technical knowledge is alternatively called "technical data or information". Technical knowledge may also be transmitted in an intangible form. For example, an engineer from the behalf of the technical knowledge supplier explains a process of engineering for an engineer from the behalf of the technical knowledge receiver or a manufacturing and production engineer inspects the production line of the supplier company from the behalf of the receiver. Another example is the technical training of the employees receiving technical knowledge in the receiver factory or supplier company. In its intangible form and through displaying or providing advice in Curley, D. “ Intellectual PropertyLicenses and Technology Transfer ”. Chandose Publishing,London, 2004,p19.
the area of production or executive operation field, technical knowledge is alternatively called "technical assistance". In its intangible form, when it includes practical leadership of the manufacturing and production operation or another operation such as design or financial and personnel or marketing management, the technical knowledge is called "managerial services".
Paragraph IV – Commercial Activity Privilege and Distribution (Franchise): " Commercial Activity Privilege" or "Distribution" are commercial agreements through which fame, technical information and experience of a party are integrated with the capital of the other party aiming at selling goods or direct supply of services to the consumer. Sales representative of such goods and services usually use trademark or services with a trademark and or symbol or special design or services. Issuing the license for use of such signs or marks by their owners is typically integrated with supplying the technical knowledge in a variety of forms including technical information, technical services, technical cooperation and managerial services in relation with production, marketing, maintenance and service and managing by the owner. Marketing of such goods and services are usually based on the trademarks or services, trademark, special dcor and or design.
Paragraph V – Consultancy Arrangements: Assistance of a consulter or consulting company providing consultancy or other services can be useful in the field of planning the assigned technology and in really receiving it. Such an agreement not only contributes to receiving the technology but also to the resulting experience and lessons learnt when being involved in the subject and working with consulter or consulting company is the valuable knowledge that can contribute to better administration of future project. Consulting services might also include the execution of a project. "Engineering and Design" services are among the conventional examples. One or more consulters or consulting companies might be specialized in providing the services under discussion of the consulting company regarding special type of services (such as planning investment, design and engineering, bioenvironmental effects, marketing or commercial management and organization. In one word, consultancy service is a type of technical knowledge, so respective services can be included in a framework of a technical knowledge contract and in particular in technical services contracts and agreements.
Paragraph VI – Turn-Key Project (exploitation-worthy):In special cases, two or more commercial agreements and naturally legal methods emanated from the services might be integrated so that construction and execution of the factory is assigned to the suppliers of technology based on their planning, accordingly "wok-worthy project" can include comprehensive arrangements of certain legal methods based on which one party is committed to completely deliver an industrial plant to his employer (receiver of the technology) in accordance with the accepted executive standards. Usually, in a work-worthy project, a party is committed to design an industrial plant and provide technical information for operating it. In the latter, complementary arrangements might also be considered for acquiring the rights of respective technology in civil engineering tasks and providing services and technical aids related to construction of the plant, purchasing and installing the equipments, raw materials or components and pieces, instructing the skill of supervision on the plant operation. The design is called "turn-key project", because final result of the project is that the key in the plant is ready to be delivered to the employer. This symbolic action is for declaring the fulfillment of the duties agreed between the two parties.