INTANGIBLE TRANSFERS OF TECHNOLOGY AND SOFTWARE

Lauriane Héau and Kolja Brockmann

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Introduction

The Missile Technology Control Regime (MTCR) seeks to prevent the proliferation of missiles and other uncrewed delivery systems capable of delivering weapons of mass destruction (WMD). Since its creation in 1987, the MTCR has become the main multilateral instrument for setting standards on missile-related export controls, which states then implement at the national level (see box 1.1). The MTCR defines guidelines for controls on transfers of missiles, space launch vehicles (SLVs) and other uncrewed delivery systems, on their physical parts and components, but also on associated technical data and knowledge (collectively referred to as ‘technology’) and software. Technology and software can be transferred by tangible, that is, physical means. A USB stick taken abroad, for example, can contain controlled technical data such as a technical drawing. However, technology and software can also be transferred through intangible means. These intangible transfers of technology (ITT) and software use ‘non-physical’ means, such as electronic transfers or oral communication.

For the actors involved in the implementation of MTCR controls, applying controls to ITT and software effectively is a widely recognized challenge. The companies and research institutes that must comply with the controls often struggle to track all of the actual or potential intangible transfers that their activities involve. Enforcement is also more challenging for national authorities and requires alternative control measures, as intangible items do not go through customs checkpoints and cannot be inspected before they reach their destination. In addition, the challenges of ITT and software controls are exacerbated by significant differences in how states apply aspects of the controls and in the legal mechanisms their national systems provide to enforce them.