Assessment of the Mechanism for Mining Technology Transfer in the Area: Loopholes in ISA Practice and Its Mining Code
Abstract
:1. Introduction
2. The Lack of Transfer of Technology in Practice and Documents of ISA
2.1. Transfer of Technology and Transfer of Scientific Knowledge
“Article 144 Transfer of technology
The Authority shall take measures in accordance with this Convention:
- (a)
to acquiretechnologyandscientific knowledgerelating to activities in the Area; and- (b)
to promote and encourage thetransferto developing States of suchtechnologyandscientific knowledgeso that all States Parties benefit therefrom. To this end the Authority and States Parties shall cooperate in promoting the transfer of technology and scientific knowledge relating to activities in the Area so that the Enterprise and all States Parties may benefit therefrom. In particular they shall initiate and promote:
- (a)
programmes for thetransfer of technologyto the Enterprise and to developing States with regard to activities in the Area, including, inter alia, facilitating the access of the Enterprise and of developing States to the relevant technology, under fair and reasonable terms and conditions;- (b)
measures directed towards the advancement of the technology of the Enterprise and the domestic technology of developing States, particularly by providing opportunities to personnel from the Enterprise and from developing States fortraining in marine science and technologyand for their full participation in activities in the Area.”
2.2. Focus on Training and Neglect of Transfer of Technology in ISA Practice
2.3. Ignored Chapter on Transfer of Technology in Several Important ISA Documents
2.3.1. Strategic Plan and Other Relevant Documents
2.3.2. Draft Exploitation Regulations
3. Patented Mining Technology Purchasing: Direct Solution
3.1. On Fair and Reasonable Commercial Terms and Conditions
3.1.1. The Meaning of “Commercial”
3.1.2. Purchasing by Paying a Certain Price and Establishing Dedicated Fund
- (a)
- Providing fund directly. For purchasing fundamental devices or observation equipment and facilities, the Authority can provide a certain fund (for example, not exceed 20% of total price) for a developing country. The developing country should submit an application with detailed information (such as, purpose, method of utilization, transaction price, comparison of transaction price and develop cost or the reason of can’t develop, etc.) under each kind of transaction. The purchasing willingness and price must be demonstrated to be accepted by counterparty. Moreover, the developing country should stipulate it has qualified scientists and technical personnel to better utilize, even develop, such devices or equipment. However, ISA should give prior consideration to offer loan unless the developing country in a poor condition to repay the loan.
- (b)
- Offering loan arrangement. For purchasing other patented mining technology, the Authority shall offer a certain loan for a developing country if it applies. The amount of loan should be based on the total transaction price, the debt paying ability of the developing country and the debt paying plan submitted by the developing country. Additionally, the issuance of loan cannot impact the integral operation of the Fund and the potential loan application of other developing countries. The loan application should be submitted accompanied by detailed information (such as, purpose, method of utilization, transaction price, the demonstration of debt paying ability, the reasonable debt paying plan, etc.). Besides, the Authority can operate with other international organizations, such as IOC and World Bank, for providing such fund to assist developing States more systematically to obtain patented mining technologies.
3.2. The Effective Protection of Intellectual Property Rights
3.2.1. The Meaning of “Patent”
3.2.2. Patent Assignment and Patent Licence
- (a)
- Patent assignment. A transfer of rights of ownership is known as an “assignment”, which might include all rights in the patent or a more limited interest such as the exclusive right to a geographical area [31] (p. 60). Throughout the practice of countries, patent assignment usually occurs in the case of employment relationship [32] (p. 447). In the scope of deep seabed mining technology, there are two patterns of patent assignment. The first and most critical pattern is that individuals or corporates as patentees or inventors transfer their entire rights to developing countries who have assistance relationship but not essential employment with them. Taking an example, some scientific researchers or skilled personnel from developed States assisted developing States to do some marine research, and during the period of assistance, these scientific researchers or skilled personnel have invented relevant deep seabed mining technology and therefore have a patent, and then ISA shall accelerate the patent assignment to developing States under reasonable payment. In the context of assistance, because developing States offer certain research conditions for these inventors, similarly with employment relationship, it is easier to reach an agreement on such assignment. This way is helpful for developing States to obtain such patented mining technology and relating know-how, and beneficial for their capacity-building. Another is patent transferring from a Contractor directly to others. Such assignment is almost impossible to take place because of assignment covering entire rights of a patent, unless the profit from assignment exceeding the profit from deep seabed mining according to rationalism and market mechanism. However, as long as the view “mining resources in deep seabed regarded as important strategic assets” has not been changed, such assignment is unlikely to occur. On the contrast, patent licence is more practical.
- (b)
- Patent licence. Compared with assignment, patent licence authorizes licensee limited rights to practice the invention in respective area. Yet the inventor still retains the ownership of the patent. A licence can be exclusive (only one licencee has the right to practice the claimed invention) or nonexclusive [31] (p. 61). Sometimes, under the circumstance of an exclusive licence, a licencee may sublicense others, but it is not the main pattern. In order to benefit more developing counties and effectively activate technology market, we advise ISA to foster favorable conditions for nonexclusive licence, particularly some mining technologies associated with environmental protection in the process of deep seabed mining. It is worthy to note, due to the principle of sovereignty, compulsory licence cannot be applied in all circumstances, even related to environmental protection. However, ISA might have rights to authorize a Contractor to utilize certain patented technology under the situation of urgent environmental protection for the interests of mankind as a whole. Definitely, this needs a further discussion and agreement authorizing such power among member States. The following conditions shall be respected under the consideration of such authorization: (i) The Contractor has already taken all measures as possible as he can to prevent such pollution; (ii) The proposed user has made efforts to obtain patent licence from the patentee on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time [33]; (iii) Such authority shall be considered on its individual merits [33], and determined by the Council of ISA; (iv) The patent holders, suppliers and respective sponsoring State or States (if has), should be informed as quickly as possible, and they shall be paid adequate remuneration taking in account the economic value of the authorization [33] and the reason of such emergency; (v) The scope and duration of such use shall be limited to the purpose for which it was authorized [33], and the patented technology cannot be applied on other activities even invention of other technologies based on such patented technology, otherwise it will be regarded as an infringement; (vi) If the proposed user has been aware that his mining activities might cause such pollution without taking such patented technology but still were carried out, and thus resulted in the emergency, at the same time of taking measures of such authorization, ISA shall impose on him a punitive payment.
4. Investment Cooperation: Indirect Solution
4.1. Seize the Superiority on Activities in “Reserved Areas” to Negotiate: for the Enterprise
4.2. Utilize “Reserved Areas” to Build up Partnership with Developed States: for Developing States
4.3. South-South Cooperation with Approximate Political Benefits
5. Conclusions
Funding
Institutional Review Board Statement
Informed Consent Statement
Data Availability Statement
Acknowledgments
Conflicts of Interest
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Ning, Y. Assessment of the Mechanism for Mining Technology Transfer in the Area: Loopholes in ISA Practice and Its Mining Code. Sustainability 2021, 13, 7005. https://doi.org/10.3390/su13137005
Ning Y. Assessment of the Mechanism for Mining Technology Transfer in the Area: Loopholes in ISA Practice and Its Mining Code. Sustainability. 2021; 13(13):7005. https://doi.org/10.3390/su13137005
Chicago/Turabian StyleNing, Yu. 2021. "Assessment of the Mechanism for Mining Technology Transfer in the Area: Loopholes in ISA Practice and Its Mining Code" Sustainability 13, no. 13: 7005. https://doi.org/10.3390/su13137005