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Ideas in a Vacuum: Protecting Intellectual Property in Outer Space

By Shambhavi Sirothia (Vth Year, Symbiosis Law School, Pune)

I. Introduction

Inventions give rise to intangible or intellectual property, such as patents, copyrights, trademarks, and trade secrets. On our planet, national laws and international treaties allowing for the protection of intellectual property are fairly well-known, and any unresolved issues are generally well-defined; however, in space, protection of intellectual property is more uncertain. The law is still developing and is largely based on how the United Nations Space Treaties are interpreted and put into practice.

State-owned space activities are rapidly giving way to private and commercial activities, making it imperative to have a strong outer space intellectual property regime. These activities include direct broadcasting, remote space sensing, and the development of microgravity systems. Government agencies today collaborate with commercial enterprises on space activities due to their financial and technological resources. Further, license agreements are contracted between public and private space entities. The likelihood of a future return on the investment in research and development is another driving force behind this private funding. Hence, the protection of intellectual property rights in space activities undoubtedly has a positive effect on the contribution of the private sector to the creation of space activities as it is incentivized to contribute significantly to the advancement and creation of space endeavors assuming that their investment would generate a respectable return.

Secondly, the International Space Station (ISS) performs an increasing number of space missions through international partnerships. As a result, a trustworthy, comprehensible, and worldwide legal framework is needed. National rules on intellectual property vary in every country despite the presence of synchronizing international treaties like TRIPS, WIPO Conventions etc. A coherent and uniform legal framework for the protection of intellectual property rights in space operations is thus necessary.

Thirdly, the emergence of new market opportunities, like space tourism, has been made possible by advances in space transportation technology. Until recently, the primary issues raised when considering the protection of intellectual property rights for space activities were about the copyright protection of inventions made or utilized in space or the copyright protection of databases employing data gathered from space operations. However, with space tourism, the security of brand names and product designs in space could also become a significant issue.

Hence, the need for establishing a legal framework that safeguards IPR in space operations cannot be overstated. The effectiveness of international cooperation between States and other organizations involved in space research is reduced in the absence of such a structure. IPR security aims to improve public perception of the human mind so that inventors and users can participate more actively in space science and exploration.

II. Demystification: Understanding the Present Scenario

WIPO treaties and the TRIPS Agreement have led to some degree of harmonization between various national intellectual property laws, but there are still sizable differences between these laws that have an impact on the level of protection that each country's intellectual property enjoys on its soil. For instance, trademark law is completely territorial in the USA based on first-use principle but India recognizes famous marks-exception rules from across the globe based on the Paris Convention and Trips Agreement. On the other hand, when it comes to space, there is no state sovereignty. Space is regarded as ‘Res Communis,’ belonging to all of humanity and to be used only in their best interest. This means that nobody owns or controls space, and anyone is free to utilize it for whatever purpose, as long as it benefits all of mankind. This does not, however, preclude States from exercising any kind of power in the exploration and use of space. The authority and control over a space object remain with the State registering such object and its personnel, according to Article VIII of the Outer Space Treaty of 1967.

The Registration Convention stipulates the eligibility criteria for registering a space object. In accordance with the Article I of the Agreement, a "launching State" is defined as a State that launches or arranges for the launch of a space object or a State that propels a space object into its territory or through its facilities. Where there are two or more launching States, they must decide among themselves which one will register the object, subject to the agreements they may have entered into regarding jurisdiction and control over the space object and its people.

Article 21 of the Intergovernmental Agreement on the International Space Station establishes the legal fiction of territoriality over space, among other requirements. It uses the concept of "temporary presence" and "quasi-territoriality", enabling member States to forgo certain obligations in specific circumstances and promoting greater interstate cooperation. For instance, it enables inventive works to be recognised as intellectual property as if they were created or invented on earth. Additionally, it requires any IPR-related applications submitted in other member States to be recognised by all member States, resulting in a cohesive IPR system within the IGA's purview.

The only country to have explicitly linked the three crucial components of inventions, jurisdiction, and territory is the United States of America. The United States Code, Section 105 (Inventions in Outer Space) on patent law grants quasi-territorial effect on a space object. According to the law, subject to international agreements, any invention developed, used, or sold in space on a U.S. space object or component thereof will be deemed to have been done so domestically. The US Maritime law that already allows for U.S. jurisdiction to regulate actions that take place aboard U.S.-flagged ships while they are in foreign seas are the foundation upon which U.S. legislators developed this provision. Other nations might adopt this strategy, which would extend the scope of IP protection for trademarks and other IP rights to space. Further, in interest of outer space activities according to Article 5 of the Paris Convention, the body of the vessel, accessories, machinery, and gear will be covered by the patent body when the vessel temporarily or unintentionally enters the water of a member state, provided that the device is used exclusively within the said member state and that the other country is a party to the Convention. It only specifies vessels, airplanes, and land vessels. Space objects are not included in this group; however, the temporary presence of a space station's components in a foreign country for the purposes of launch or landing will not protect them from being charged with patent infringement.

The European Commission stipulates that the Community Patent Regulation should apply to inventions made in space that are within the control and jurisdiction of one or more member States in conformity with international law. The law on this subject, however, remains vague.

The development of intellectual property rules in space-related businesses is still in its infancy in India, as it is in other States. Despite the fact that India is a signatory to numerous international treaties, including the Outer Space Treaty, 1967, the Rescue Agreement, 1968, the Liability Convention, 1972, the Registration Convention, 1975, and the Moon Treaty, 1979, the situation remains the same with no unique national legislation.

The Space Activities Bill, 2017 was introduced in Parliament to encourage private organizations to participate in space operations in India, as well as to promote and regulate India's space activities. Section 25 of the proposed legislation outlined rules for the protection of intellectual property rights created during any space-related activity. The Bill states that any intellectual property rights created on board a space object be treated as belonging to the Central Government. However, it posed certain doubts - will Facebook, in essence, not own the photographs captured by a satellite if it is launched from India? The measure does not address or safeguard the rights of private entities, despite the government's efforts to include commercial participation in space activities. Moreover, important issues like orbital patents and flags of convenience are not discussed by the measure.

III. Conclusion: The Road Ahead

Space is the "natural heritage of mankind." It offers abundant opportunities for a variety of innovative applications of human excellence. Inventions created in space acquire unique dimensions of IP rights in them. India has successfully demonstrated its technological capabilities. Commercialization of space activities has also opened a vast market for India to sell its space products. The current institutional framework needs to be redefined, and interdepartmental cooperation encouraged in order to make a legal standard for further substantial expansion of India’s space activity. The author suggests that to settle the differences between the laws of intellectual property and the space law regime, a harmonized system - essentially an amalgamation of UNCOPUOS and WIPO - should be formulated and upheld by the entire international community. There is also a need to clarify pertinent legal rules and regulations regarding both public and private law aspects of space activities, as demonstrated by the experience of industrialized nations like the USA. The interests of developing nations should be considered before framing the law to give them free access to scientific data, ensuring knowledge sharing, and encouraging their technological development. To hear and resolve disputes arising out of IPR in outer space, it is also necessary to develop a standard enforcement framework, such as that of international arbitration. Any space policy according to Committee on Ethics of Scientific Knowledge and Technology (COMSET), should be built on the idea of reciprocal and mutual advantages while preserving fair competition and the notion of return on investment.

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