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II. The change after the second world war
The defeat in the Second World War ironically brought another round of industrialization to Japan. New research fields and technology originating in the United States were introduced. During the war the Second Faculty of Engineering was established at the University of Tokyo, but after the war the Faculty was reorganized into several research institutes for science and technology. Kyoto University also expanded its own Faculty of Engineering. The number of professors has Increased, from 63 in 1949 to 165 thirty years later in 1979. The number of students of engineering has expanded from 1,640 in 1957 to 5,500, and now the Faculty can boast that one out of every three students at the university is majoring in engineering. Besides these famous universities, the national universities have now expanded in number from 19 before the war to 93 at the present. Unfortunately, the new local universities have Insufficient funds and personnel to promote the study of social science even if they have both a Faculty of Letters and a Faculty of Science.
The significant change In the realm of the humanities is the alleviation of governmental control and interference and the disappearance of taboos affecting research projects. The number of chairs in humanities has not conspicuously increased but each scholar enjoys spiritual freedom, relieved from the burden of censorship. One new development in the research field of humanities has been the establishment of new Institutes for economics and business management. Quantity analysis developed by the US has been adopted in these new institutes. This shows a sign of westernization even in the study of the humanities.
In spite of the great change after the war, an unchangeable factor worth mentioning here is the leadership that the centralized government has shown. Throughout the American occupation, the US tried to Introduce the idea of decentralization into the Japanese administration, but It met direct or Indirect resistance from the bureaucracy. It also failed to decentralize education, the police system, and the financial system. The evolution of science and technology in postwar Japan was carried out under the guidance of the central government authorities such as the Ministry of Education and the Science and Technology Agency.
It Is well known that the leading developments in scientific technology after the war have been In the fields of automation, electronics, atomic energy, and synthetic chemistry, all of which were developed In the US. The sophisticated technology which needs elaborate equipment and a mass-production system can only be developed by the power of huge industrial conglomerates. The rapid growth of the economy in Japan has depended on the development of these huge industries. Therefore, the three decades after the war could be called "the Age of Science and Technology" In the history of Japan.
But one important factor is that science and technology, which have long been through" to represent the most brilliant achievements in the world, have suddenly proved to be incompatible with human beings and their societies. It became clear to us at the end of the 1960s that the development of science and technology could kill us all. Poisoning from agricultural chemicals and medical drugs, air pollution from the petroleum industry, water pollution from synthesized fertilizers, traffic accidents, and atomic plant radiation leaks, all these are damaging our society, although they are the by-products of modern industry, of science and technology.
In the space of a few years, our sense of values has reversed itself. Science and technology suddenly lost their shining status and their impact was regarded as suspect, though people stir clung to the benefits they were providing. It is interesting to see how people began to feel a strong need for decentralization and local autonomy as the negative view of science and technology began to prevail among the general public and as criticism and opposition increased against the centralized policies of the government. In Japan, many historians and economists, together with some of the progressive activists in local community movements, developed new research groups to study the possibility of establishing "regional communities." Besides these specialist groups, popular voices were raised and gained general support for local autonomy, local cultural activities, and the conservation of the environment.
III. The significance of "the age of local communities''
In spring 1979, the local elections for governors and mayors were held in fifteen prefectures and hundreds of cities and towns around Japan. At this time, all the political parties and the mass media advocated the slogan: "Here comes The Age of Local Communities." What did this vague slogan mean? The result of the election at least showed that all the former governors of large prefectures such as Tokyo and Osaka who had stood for a progressive opposition party were replaced by veteran administrators in charge of local problems in the central government. For citizens, "The Age of Local Communities" simply means that a local governor who has a strong connection with the central government will be able to draw out more from the central funds for his local community.
Therefore, the regionalism implied in the slogan "The Age of Local Communities" is not sufficient to satisfy the real needs of the regional community. It will not bring a radical change in the relation between the central government and regional communities, nor will it foreshadow the coming of a new age. It will guarantee neither the autonomy of the local community nor its inherent creativity. After a hundred years of centralization, the identity and independence of the local community suffer from severe damage in Japan. Therefore, people should claim more ostentatiously their right to a "regional community". Otherwise, "The Age of Local Communities" will end up as nothing but another deceptive slogan.
Nevertheless, it is noticeable that the government, economic circles, and even the mass media are at the moment continually paying lip service to the issues of the "regional community." Prime Minister Ohira conceived a plan of building a number of local cities with populations of 300,000 in many places throughout Japan. He called it the "Garden-City Concept." Also, the Agency for Land Development advocated the building up of ''Regions of Permanent Residence". The Agency for Local Institutions has another plan to transfer the administration of traffic and welfare to the local governments in the cause of decentralization. There are many more examples of local community projects advanced as joint ventures of a regional government and groups of local businessmen.
What effect have these changes had on the present situation of science and technology? It is well known that the introduction of huge industrial units in the American style brought about the economic development of post-war Japan. But it is also well known that the elaborate conglomerates cannot evolve any further, partly because of the lack of new markets and partly because of environmental pollution and inevitable accidents, but chiefly because of the shortage of resources and the new energy crisis. The technology needed at this moment is not that of the huge industrial conglomerates on a national scale and the know-how to operate them, but the development of "intermediate technology!' or "small decentralized technology" which actually meets the needs of the local community and is under the control of the members of the community. There is also a need to reevaluate the techniques for manufacture and livelihood which have been fostered and handed down in traditional communities. From these points of view, a radical change in the philosophy of science has been under way for the relocation of the regions of human life along the water supply routes and the reorientation of human society as an ecological entity. As for the energy crisis, an "Autonomic Energy Plan" will be recommended to each regional community to replace the current energy-consuming technology and way of life.
I am afraid, however, that an extreme "anti-technology" posture could easily lead to a total denial of the value of science and technology, as could the simple slogan "'Return to Nature" after the fashion of J. J. Rousseau. Japan has been so deeply committed to science and technology that it is inconceivable that she should ever give up her large-scale research projects for science and technology, or cast away her elaborate industrial investments.
'What we can hope for in Japan's future is not a vainglorious centralized government, but a productive administrative system which honors the initiative and identity of local or regional communities; not a huge conglomerate for science and technology, but a small-scale flexible system of technology; not devotion only to an analytical and rational science, but encouragement of wide varieties of study in the humanities and social sciences. I think that present-day Japan is already at such an advanced stage of culture and civilization.
Legal aspects of the transfer of technology in modern society
Introduction
The relevance of the legal order to the transfer
of technological knowledge
Some proposed measures on the national and
international levels
The contemporary world has at its disposal, generally speaking, sufficient human and material resources; so for the time being the question of the insufficiency of resources is not raised. But the fact is that those resources are not evenly distributed within the international community, and for that reason some states abound with resources while others do not have a sufficient or sufficiently diversified share of resources (e.g., the mono-cultural type of economy). However, the fundamental cause of the existing differences is the unequal distribution of scientific and technological knowledge in the world, enabling a limited number of countries to make rational use of their natural wealth. The rest of the states, not having the necessary knowledge and experience, are forced to purchase it in order to exploit their natural wealth and engage their human and material potentials.
A large number of the developing countries are in a situation of having to import almost the whole technological basis of their national economies, relying little on their own capacities. Consequently, their dependence on foreign technology is enlarging and intensifying because of the general development trends of the developing countries. That relation can be illustrated by the fact that all developing countries contribute only 7 per cent to the world industrial production. This is due to the world set-up which puts many of these countries in the position of satisfying basic needs for industrial goods by importing them in exchange for raw materials.
The scientific and technological dependence of the developing countries can also be demonstrated in another example. Of the 400,000 inventions applied annually, developing countries take part in 1 per cent (the USA, the USSR, the Federal Republic of Germany, and Japan participate in 73 per cent). This should not be surprising, considering that only 2 per cent of total expenditures for research and development in the world is spent in developing countries.
Today's expenditures for scientific research in developing countries are 0.7 per cent of the GNP on the average, versus 1.3-3 per cent in the industrial world.
When we observe the differences in development between various countries as far as per capita income is concerned, noting the rate of industrial expansion and other economic indications, we actually only scratch the surface of the basic economic and industrial set-up. The very essence of these relations correlates with the gap between the invention activities and possibilities of one group of countries in applying new forms of technological knowledge and the slow pace of the other group in tarring part in the process. For the latter group of countries, importing technology is the imperative of economic survival. The transfer of technology, considered as a complementary exchange of available technological knowledge, represents by itself no danger for a national economy. Today's reality of that transfer, however, is overwhelmingly based on pure export from developed countries, lacking any kind of exchange of human knowledge.
The dependence of national economies on the import of technology can be a step in bridging the gap in invention activities - as it was, for example, in the case of Japan - provided such a transfer becomes organically implanted in domestic industrial production and stimulates local creative potential. This results in cutting technological imports down to the import only of more sophisticated technology which complements domestic technology and helps achieve further and more significant domestic technological improvements.
The expectations of such progress are not fulfilled in many countries, however. In spite of their best efforts, natural resources, cheap labour, and the existing economic structure remain their sole factors of economic development.
On the other side, no more than a dozen countries or a hundred multinational companies possess and control the key technology. The export and import of technology neglects the real needs of developing countries, leaving them at the mercy of big monopolies that dominate the market. We see old colonial powers as technology exporters who have adapted to the present situation by perpetuating the dependence of the former colonies in a relatively hidden manner. The methods are different, and are correlated with the participant in transfer, the kind of technology, and so on. The most common method is by neglecting to establish a satisfactory relation between the imported technology and the traditional culture in a broader sense. Otherwise the monopoly of transferred technology would be at stake. Technology remains the most subtle means of control and domination of many societies by the owners of the technology. Instead of contributing to the resolution of the vital problems of the third world, technology becomes a power which acts against the basic interests of Third World peoples.
The technology imported into developing countries is often too advanced and automated for the geophysical characteristics of the country, the demands of the market, and the limited output of production. Contrary to some assertions, the main danger for developing countries is not in the ability of the supplier of technology to transform the technology into capital but in the use of technology in a monopolistic manner - by excluding the acquiring country from exploiting the technological knowledge - and in the abuse of the monopolistic position.
The owners of technology, furthermore, carry out the exclusive distribution of technology in the world through the glorification of private ownership and the transformation of historical advantages into their own. In this context, the present position of the developing countries is compared to the situation when today's developed countries were underdeveloped themselves before they managed to overcome that situation and became developed. Such a comparison involves neo-colonialistic implications, because in the times spoken about, today's developed countries were surrounded by countries which were even less developed.
The developing countries are integrated into the world system dominated by the economically developed countries, which, having inherited advantages, provided for themselves the best position in the world interest-economies and converted it into their permanent monopoly. The highly developed technology of the industrial countries is based on two hundred years of industrial tradition, supported by the advancement of appropriate infrastructure. The developing countries have neither the tradition of technological development nor the appropriate infrastructure, so their position is considerably more unfavorable than the one today's developed countries had one or two centuries ago.
The developing countries, after achieving national independence, have to conform to the existing economic relations in the world (until the new economic order becomes universally accepted) and to the "international division of labour,'' as it is generously named by western economists, that exists at the time. The developing countries are compelled to be incorporated into contemporary macro-technology - the macro-organization of the production forces - which is dominated by technical elements. Macro-technology is founded on normalization, unification, efficiency, and stability; it has grown out of the capitalist system, and its bearers want to impose it upon all mankind. In the developing countries, centres for the development of macrotechnology are rare and without significant influence on the aggregate development of macro-technology in the world.
Another danger for the developing countries is the transfer of technology performed in the mode of today. The unequal technological and economic position of the contract parties enables the suppliers of technology to have the decisive control in determining conditions for the transfer of technology. Not only is the type of technology determined by the owners (technology that has not been adequately tested, for instance, so that the receiver has the role of testing polygon, or that is sufficiently amortized or already out of date), but the accompanying elements of so-called "tied purchase" are also decided upon by the owners, in order to enlarge their profit and make the position of the receiver even more subordinate, under the pretext of an efficient transfer of technology.
As the competition in the market of technology is imperfect, the price is decided upon by the owner, having in mind the economic position of the receiver. in most cases, the resources at the disposal of the receiver are limited, so the owner of technology is simultaneously in the position of giving a loan, and that makes the position of the receiver even worse. An enterprise from a developing country, needing foreign technology and not having enough financial resources and information about the available technology in the world, and being restrained by given social and economic conditions (the stage of development of the production forces, infrastructure, the profile of personnel), links itself to the first owner of technology who is willing to make it available to that enterprise by granting a loan. The terms of the transfer of technology are out of the primary concern, as well as the effect of the application of technology on the receiving country. In other words, the transfer of technology performed under restrictive conditions imposed by the developed countries is partly made possible by the developing countries themselves. The lack of interest or wrongly directed interest of the international community also plays a part in this situation.
The relevance of the legal order to the transfer of technological knowledge
The legal protection of technological knowledge and skill, i.e., the law of industrial property, is an accomplishment of the contemporary national and international legal systems, as the object of protection gained its significance only in the circumstances of a relatively developed industrial production.
Industrial property rights were values of accessory nature till the Second World War in the majority of industrial underdeveloped countries. Domestic industry was almost non-existent in many countries in Africa and Asia, while industrialists and merchants from developed countries enjoyed a monopolistic position in the domestic market. On that account, there was no need for the registration of patents and trademarks and, accordingly, no need for domestic law on industrial property. The attainment of national independence, the beginning of the development of national industry, and the pressure exerted by the owners of technology from developed countries that they be granted exclusive rights influenced the adoption of the first national regulations on industrial property.
However, laws on industrial property that were and are still being enacted in economically underdeveloped countries are not adapted to the real stage of development of the production forces but, in most cases, have simply been taken over from the former colonial powers. The developing countries, fascinated by their systematization and legal concepts, adopt them without serious consideration because of the lack of domestic experts. In this process they fail to take into consideration that the laws they are taking as a model have been constructed in such a way as to protect the interests of the exporters of capital and technology and/or are designed for a society with a much more developed base and superstructure than exists in the country which is adopting them.
In this manner the phenomenon of law becoming an object of transfer from developed to developing countries originated. It is a phenomenon because the legal order is, in fact, the framework for the transfer of technology, legalizing it on the national and international levels. Thus we have the situation of developed countries exporting not only industrial equipment, knowledge, and capital but also legal rules enabling the exploitation of the imported equipment, knowledge, and capital in the recipient, developing country in a manner that suits their owner. In the developing countries we come across legal rules representing a more or less unsuccessful combination of the customary national law and the law received from an industrial power, usually the former colonial power.
A former colonial power has continuing economic influence in a developing country, and it tries to preserve such a situation as long as possible because it is in its interest, i.e., in the interest of its citizens who are transferring technology into the developing country under the protection of the industrial property law. In this way, the development of peculiarities in the law of new states is impeded, and positive ideas on the unification of the law on industrial property are compromised because of the neo-colonialistic ambitions of some developed countries. The national law on industrial property, instead of encouraging domestic innovative activities and having a positive effect on the flow of foreign technology (under conditions favourable to the national economy), works against domestic industry in favour of foreign technology owners from the developed countries.
The existing system of international protection of industrial property is based on the principles proclaimed in the Paris Convention at the end of the last century. Accordingly, the system is based on the principle of formal equality of the member countries (and the same conditions are imposed upon unequal members). The granting of legal protection to foreign citizens and adopting the principle of national treatment were important democratic achievements in the domain of law and international relations in general. Although this system has its undeniable historical significance and is a contribution to the legal theory and practice of the nineteenth century, it should be pointed out that, even at the time of its establishment, it did not suit the interests of underdeveloped countries. But at those times in the underdeveloped countries that were already sovereign states, the internal balance of power favoured the infiltration of foreign influence and consequently of foreign law too; so those countries acceded to international conventions, irrespective of the real character of such conventions, and it was taken to be a progressive attitude on the part of domestic governments. Domestic legal rules contributed to such a climate too. As has already been mentioned, they represented - more or less - the reception of foreign law. However, at the time of the adoption of the Paris Convention the majority of the contemporary developing countries were colonies, and the question of their accession to the convention was solved by the application of the "colonial clause.)' So the system of international protection of industrial property was created by the industrially developed countries, and it served as a tool for the institutionalization of existing monopolistic and colonial positions.
Later, in the circumstances of a developed international market, modern industrial production, and the raising of conscience of the most advanced countries in the world, the implementation of the international system of industrial protection revealed the extent of its outdatedness. However, it was and still is difficult to oppose the apologetic claims of an equitable treatment of all the parties to the Paris Convention and its other principles as well, since it is backed up by the most developed countries in the world. On the other hand, it took almost a whole century to make the majority of the parties to the Paris Convention aware of the extent to which the international law of industrial protection is relevant to the transfer of technology, and consequently to national economic development. A large number of the developing countries acceded to the Paris.
Convention automatically, the same way they did to other international conventions, in the ecstasy of the attainment of national independence and without an estimation of the impact of those international conventions on their national needs.
It can be stated that both national and international law, in the present conditions, are components of the institutionalization of the existing relations based on factual inequality in the international community and that they serve as the means for new forms of neo-colonialistic exploitation. This is quite understandable when we consider the very nature of law and legal order, which are always the proponents of the institutionalization of the existing relations in a society, created by the more powerful minority; it is unlikely that they could serve as instruments for changing relations to the disadvantage of those who still occupy stronger positions in the international community.
The developed countries do not base their superiority on their size or the allocation of resources but on the technological and industrial advantages they have achieved and on their more developed social structure. Accordingly, it is in their interest to cement existing relations, and the international protection of industrial property is a really convenient instrument to this end.