From Infinity to the Finite: A clarion call to reform the IPR sector in ZeroGravity

By Suhani Bansal & Shivansh Shashwat (IInd Year Student, National Law Institute University, Bhopal) Introduction

The Fédération Aéronautique Internationale defines outer space using the Kármán line which is located at an altitude of roughly 100 km above the mean sea level. The area of ‘outer space’ and related activities has witnessed two major developments, contemporarily, that is, the influx of private players in space expeditions and the diversification of how outer space is utilised. This includes activities such as ‘space advertising’ and data collection by remote sensing satellites that pertain to the Intellectual Property Rights (“IPR”) and require a nuanced regulation. Although IPR is premised upon territoriality, outer space is inherently non-territorial; this piece contends that the resulting disjuncture leaves commercial IPR in orbit inadequately defined. The existing legal frameworks such as the ‘corpus juris spatialis’, chiefly, the Outer Space Treaty (“OST”) and the Registration Convention do not merely fail to bridge this gap; rather, their provisions may operate as instruments of regulatory arbitrage for States that lack institutional capacity or hold vested commercial interests. This piece develops that argument through the emerging practice of space advertising, before turning to the ‘ITU Constitution’ as a practicable pathway for addressing the legislative lacunae surrounding IPR in outer space.

Space Advertising - Banners among the stars

The process of advertising in outer space, that is capable of being recognised by a human being on the surface of the Earth, without the aid of telescope or other technological device is called obtrusive advertising. In 2018, the Falcon rocket from SpaceX was employed to send a Tesla Roadster into space for public endorsement. In 2019, StartRocket announced a campaign with PepsiCo’s Russian subsidiary in collaboration with a private space agency to exhibit logos on the Earth’s surface through sunlight mirroring, though PepsiCo’s headquarters subsequently said it had only conducted an exploratory high-altitude test and was not pursuing the project.

More recently, Avant Space, a Russian startup proclaimed its lead in space media satellite following a triumphant test launch. Moreover, Avant Space has partnered with StartRocket on a proposed array of up to 400 satellites, to be assembled using modular components purchased from Malaysia-based suppliers. The impetus is to create an array of CubeSats that will display logos in the night sky through the use of lasers. A capital outlay of $100 million with a one-year accrual period is projected to fund this kaleidoscopic arrangement. As the number of brands which incorporate these advertising strategies continues to grow, there is a need for laws governing IPR to protect ownership in the outer space. This would also create an accountability mechanism to keep illegitimate advertising in check.

The Blue Pencil Rule: Delinking IPR from Territoriality

Space advertisements essentially involve occupying a portion of outer space, and utilising it with the objective of realising commercial gain. Herein, the dichotomy between territorially anchored IPR and outer space is illustrated in four ways: the OST’s “common to all” baseline, the gap in jurisdiction and enforcement, the transit loophole in patent law, and the weakness of the supervision duty.

The “common to all” baseline

Article I of the OST defines outer space as Res Communis which translates as “common to all”. However, Article II of the OST qualifies this by prohibiting assertion of sovereignty over outer space, the moon, or other celestial bodies through appropriation. Article IX of the OST reiterates that states party to the treaty should carry out peaceful exploration of the outer space. This should be done through mutual cooperation and without harmful interference with the activities of other states. In other words, no state owns the orbital space an advertisement would occupy.

The jurisdiction and enforcement gap

The Registration Convention,1976 read with Article VIII of the OST grants a state jurisdiction and control over an object in outer space that is included in its registry. Additionally, pursuant to Article 21 of the ISS Intergovernmental Agreement, any activity conducted on the module of an ISS partner state is considered to have occurred on its territory for IP purposes. Consequently, it renders IPR enforcement unfeasible for private entities sparking potential conflicts between them and the registering state. Also, this limitation in the legal framework can be exploited for obtrusive advertising to circumvent compliance in prohibitive jurisdictions. This poses a double bind. Firstly, that the technology for broadcasting unauthorised brand imagery from orbit has domestic IP protection in its jurisdiction of origin and secondly, that the rights-holders whose marks could be displayed have no equivalent protection against that specific vector of infringement.

The transit loophole

Per Article 5ter of the Paris Convention for the Protection of Industrial Property, temporaneous traversal of a device that has patent protection through a foreign jurisdiction is allowed without constituting an infringement. In other words, a patented device does not infringe a local patent merely by passing temporarily through a jurisdiction, as a ship or aircraft might in transit. In essence, immunity from IPR claims is conferred upon commercial satellites that transit through jurisdictions where space advertising is prohibited. Yet the exemption was designed for incidental transit, and such impunity is unwarranted for a satellite whose sole commercial purpose is the advertising it conducts while overhead.

The supervision gap

In accordance with Article VI of the Outer Space Treaty, all states bear international responsibility for national activities in outer space including non-governmental activities that must have the approval and continuing supervision of the concerned State Party. This requirement intended to safeguard laborious State-backed activities at the time, instead, the provision may now be used as a tool for licensing by States that seek to attract commercial operations to the outer space for manufacture or assembly purposes.

As an increasing number of nation states venture into extraterrestrial activities, a low threshold is set for authorisation where any state having adopted a legislation on space law would suffice. However, a myriad of newly admitted states lack the institutional capacity to observe the provision on continuing supervision. This may lead to permissive licensing by states with limited capacity to enforce accountability under the regulatory mechanisms in place. Herein, Malaysia’s accession on 21^st October 2025 is noteworthy as it is not obligated to retroactively comply with the OST. StartRocket, with Avant Space, has proposed assembling a constellation of up to 400 advertising CubeSats from off-the-shelf components in Malaysia, contingent on raising roughly $100 million. As that proposed assembly would predate accession, it would not be caught by the continuing-supervision duty under Article VI. The point is not that Malaysia acted in bad faith, but that a State acceding only after commercial space activity has begun on its soil leaves a gap during which that activity escapes the supervision the treaty requires.

Synergy (supra) Space Odyssey

The path forward is the unification of the existing patchwork of IPR in space into a well-defined framework. Presently, a COPUOS convention is perceived as a workable solution to mitigate obtrusive advertising by adopting a definition modelled on the US framework under 51 U.S.C. § 50902(12). However, the sluggish pace of negotiations under COPUOS is a major impediment in establishing agreements having legal force.

Another recourse is the ITU Constitution under Article 44 that has the authority to enforce laws governing radio frequency interference (“RFI”). It has been posited by the IAU Centre for the Protection of the Dark and Quiet Sky that satellite-induced photonic pollution can be compared to RFI as they both fall within the ambit of electromagnetic radiation. Ergo, a cogent alternative would be the extension of the ITU Radio Regulations to encompass satellite-induced contamination at the next World Radiocommunication Conference.

A more immediate channel would be coordinating among leading spacefaring jurisdictions to develop a normative framework for regulation of IPR related activities in the outer space grounded in the supervision obligation under Article VI. Moreover, to avert obtrusive space advertisements which are non-compliant, unwelcome, or otherwise objectionable, standardised clauses need to be worked out to establish restrictions on “permissible” space advertising. As a near-term resort, such clauses should be included in jurisdictions with a newly developed space legislation. For instance, the recently proposed EU Space Act and Estonia’s space law should incorporate provisions that proscribe against obtrusive advertising prior to the grant of commercial launch licenses.