Intellectual Property Law And The Outer Space: A Promising Future Ahead?

INTRODUCTION

Technological advancements in the field of outer space, for the purpose of exploring an extra-terrestrial environment, studying and using it, is not a new concept. However, questions of Intellectual Property Rights governing these advancements have been brought to the fore relatively recently owing to the fact that these developments have become more of a private or commercial affair rather than a state run activity. Protection of one’s innovation is imperative to their success. With the world understanding the importance of such safeguards, the demand for it has risen exponentially.

OUTER SPACE AND INTELLECTUAL PROPERTY LAWS

Outer space (often referred to as space) consists of a region of universe beyond the upper layers of the atmosphere of Earth.. The term is commonly used to distinguish it from airspace and territorial locations. However, the Fédération Aéronautique Internationale has established the Kármán line, at an altitude of about 100 km (~62 mi), to distinguish the boundary separating the working definitions for aeronautics and astronautics.[1] Unlike earlier times, space research is not restricted to the government organisations, but has extended to the private players as well. However, the involvement of non-governmental agencies is not in absence of ascertaining any legal liability; Article VI of the Outer Space Treaty, 1967, provides that States shall be responsible internationally for national activities in outer space carried out by governmental agencies or by non-governmental agencies and that the State shall authorize the activities of the non-governmental agencies.[2]

Intellectual Property Rights in Space essentially implies that the State is willing and capable of granting protection to creations outside its conventional territorial boundaries, in the Space. The protection affords the owner of the creation the right to pursue a legal recourse in the event of the creation being commercially exploited in Space. However, one of the main issues with the protection of creations in Space by IP law is that its foundation for the IP law for Space was laid down in the Cold War era, when Space was an object of interest for nations, not private entities within the nation. However, intellectual property rights aim to protect the interests of the owner(s) of the creation. Thence is seen an inherent tension between the principles of space law and the IP laws.[3]

The probable intellectual property protections that can be accorded to space technologies are the following,[4]

  1. Trade Secrets

Entities, which are self-sufficient and can manufacture and operate their space related technology without any third-party aid, can resort to trade secrets for the protection of their creations. They refer to any information held within the entity, which can be used in the operation of the entity’s business or enterprise and is sufficiently valuable, to afford an actual or potential economic advantage over the others.

  1. Patents

Two main aspects that any patent applicant will have to consider before acquiring a patent for their technology are

  1. The jurisdiction(s) in which the technology is used prior to being launched into space; and
  2. The jurisdiction(s) and associated “control” point(s) of the technology.

Patents being granted by the national governments are inherently territorial and thus, it becomes a problem to grant the same in a region presently without territories, such as Space. This issue was resolved by Article VIII of the Outer Space treaty which specifies that the State (party to the Treaty), on whose registry an object launched into outer space is carried, shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.[5] The control point of the technology is also retained with the State which has registered the technology. Depending on the space bound technology, the patentee has to either consider the first aspect or the second or a combination of both for the purpose of its protection.

  1. Trademarks

Currently, there is no provision for the granting the protection of trademarks to any inventions sent to the space. Quite different from patent, it pertains to the reputation and branding of the concerned goods and services. For instance, companies such as SpaceX, Orbital Sciences Corp. and XCOR engaged in manufacturing and commercial upstarts would strive for a protection of their innovation and reputation in Space. Virgin Galactic is attempting to undertake commercial trade in outer space and, as a result, those willing to exploit this trade will have to seek the protection of Trademarks.

  1. Copyrights[6]

The transmission and reception from satellites can be safeguarded by copyrights. Protecting copyrighted works transmitted by satellite from unauthorized interception and use has been an international concern since the 1960s. There is a severe inadequacy of the same. Though Article 22 of the International Telecommunications Convention and Article 17 of the Radio Regulations of the International Telecommunications Union require member states to keep certain telecommunications secret, their relevance to interception of satellite signals is uncertain. Such copyright issues can also emerge from the direct broadcast satellite technology. It was in furtherance of this deficiency that The Brussels Satellite Convention was formulated.

As is evident, no intellectual property rights can be claimed yet in Space as such as it is seen historically seen as a common heritage of all of mankind and furthermore the requisites laid down in the OST which mandates the sharing of the benefits of what is derived from Space, individual rights are far from being claimed. It is only on an object that is launched into space can a person/nation have exclusive rights over. As earlier stated, Article VIII of the Outer Space Treaty governs this aspect stating that the launching State has to register the object and in consequence of it, will have jurisdiction over it. In cases where there are two or more launching states, the decision is left to the parties to decide and determine which one of them should have jurisdiction and right over the object. Though the invention is registered and protected under the laws of the nation it is manufactured in, the law which is to govern the activities of such an invention is still a big blank spot.

COUNTRIES HAVING IPR LAW COMPATIBLE WITH SPACE LAW

It is only in the United States Law and the NASA Act that explicit statutory provisions for the applicability of domestic IPR law to Space activities exist. For instance, the US Space Bill extends the applicability of patent law into Outer Space, whereas, the NASA Act considers a space object as nothing but a “vehicle”.[7]The latter has successfully developed a flexible intellectual property policy which has worked extremely well to protect the proprietary interest while encouraging industrial participation in commercial space activities. [8]

Even the European Space Agency has drawn up a number of rules governing intellectual property: contract regulations, provisions in the implementing rules of optional programs, and clauses contained in international agreements. Every year, the ESA files around 20 patent applications in relation to inventions by its staff members. It has also chosen to protect the names of its programs by means of registered trademarks for those programs that are conceived and developed with a view of future commercialization by a company set up for that purpose, e.g. as under the Arianne Programme. It is the European Union only which plays an important role in satellite broadcasting, by creating an environment in which trans-frontier broadcasts are not hampered by legal uncertainties.[9]

Though India is a party to all international space treaties, it is no different than most other countries when it comes to enacting a specific space legislation of its own, i.e., it doesn’t have one.With Indian space activities rapidly diversifying, there is a dire need for formulating comprehensive and harmonious space legislation.

NEED OF HARMONIZING IPR AND SPACE LAW

There is no questioning the fact that intellectual property is essential for exploring space and further contributing to research and development. However, certain conflicts persist. The enforcement of any intellectual property may be in conflict with principle of free and fair access to knowledge, information and resources derived from space activities and cause hindrance to the same. [10]

Though the regime of intellectual property is governed by national laws, international entities like the World Intellectual Property Organisation (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have succeeded in harmonizing the IP laws to some extent, worldwide. However, such a harmonization is not sufficient for extending such protection to space related activities and inventions. The need of the hour is to establish a uniform legislative regime governing IP laws in space so that even the developing countries are able to benefit from their creations rather than being overshadowed by the developed ones. There is a wide scope for several new dimensions pertaining to IP rights that can be opened in the Outer space, such as, application of territory based national laws in outer space for enforcement of rights, entitlement and ownership in case of joint activities, compliance with international obligations, etc. In addition to a uniform legal regime, a standard enforcement mechanism, such as that of International Arbitration, also has to be established to hear and decide disputes arising out of IPR in outer space.

Space has potential which may take us years to, merely, discover. It can provide resources that cannot yet be priced. It is only through the technical and financial cooperation of the private sector and the government entities that proper and adequate methods for exploring the space can be devised.  An incentive that any enterprise has for innovating and creating better technologies is that it has exclusive right over its inventions to the exclusion of others. The only way such an exclusive right can be granted is via intellectual property rights. Thus, it is for the benefit of space exploration, as a whole, that IPR laws have to be brought in line with Space Laws.

Author: Anwesha Singh, Intern at IP and Legal Filings  and can be reached at support@ipandlegalfilings.com.

References:

[1]http://www.newworldencyclopedia.org/entry/Outer_space

[2] https://www.ifrc.org/docs/idrl/I515EN.pdf

[3]https://www.griffithhack.com/ideas/insights/commercialisation-of-space-and-the-use-of-intellectual-property-laws/

[4] Ibid

[5] Supra note 2

[6]http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=spacelawdocs

[7]http://docs.manupatra.in/newsline/articles/Upload/DFC0906E-2C8A-45EF-8553-8604077E1D49.pdf

[8]http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=spacelawdocs

[9]http://www.esa.int/esapub/bulletin/bullet79/balsano.htm

[10]https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf

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