ABSTRACT:
At first glance, Intellectual Property Rights and Space Law appear to be separate areas of law. A national law protects the creator from exploitation but international law enables the exploration of Outer Space without unreasonable restrictions or limitations. Two UN conventions and treaties, as well as UN principles are examined in-depth as well as emergent concerns arising from the commercialization of outer space operations. Space research demands large costs and any discoveries made by private companies must be acknowledged and given appropriate credit. It is also more difficult to handle IP concerns in outer space since there is no agreement or a single platform to evaluate them because of the differences in the national laws of each country. Space activities and IP problems will be examined in this research paper. Patent and copyright concerns in Outer Space Activities as well as potential alternatives to the legal gap between the two regimes will be studied and examined.
KEYWORDS: Intellectual Property Rights, Patent, UN Conventions, Outer Space, Commercialization.
INTRODUCTION:
It is not a new notion to use technological developments in the realm of outer space to explore, research and use an extra-terrestrial habitat. Furthermore, because these advancements have been more of an independent or commercial concern than a public one, issues of Intellectual Property Rights regulation have only recently been thrust into the spotlight. USSR’s momentous launch of Sputnik in 1957 marked the beginning of space exploration. The U.S. jumped on board in January 1958 with the launch of Explorer I. Including the desire for space comes the rights and responsibilities that come with space operations. This illustrates the importance of intellectual property law in outer space. They are the mechanism by which a state grants an inventor of any object the right to enjoy his work. To stimulate innovation, research and development it strives to provide economic value to the community.
An innovation that took place outside of any nation’s geographical borders does not exclude its inventor from asserting rights over it, according to the philosophy underpinning IP protection in outer space operations. It’s difficult to create a harmonic relationship between IP law and space law if they’re interpreted broadly, since the former grants monopoly to the inventor while the latter claims space to be a “province of all people”. When it comes to intellectual property rights (IP), the state defends creators’ interests by granting them ownership rights over their creations whereas the Space Law aims to comply with the principles of international collaboration and mutual agreement for the benefit of all parties involved. There are several reasons for re-evaluating the existing legal structure for Outer Space IP problems. The first is the development and rising commercialization of outer space operations.
During the advanced days of the space era, most space operations were governmental and not commercial. Today, space exploration is no longer limited to governmental institutions but also involves independent and commercial activities. Article VI of the Outer Space Treaty of 1967 provides international responsibility for government acts in outer space or non-government organisations, as well as the need that nations allow non-governmental activities in space. [1]The protection of one’s originality is critical to the development and commercialization of any modern innovation on Earth or in space. Intellectual property such as patents, copyrights, trademarks is frequently the product of innovation. Even though the national laws and treaty obligations safeguard this planet, intellectual property is well-known and unresolved regions are marked. Intellectual property protection in space is susceptible to larger uncertainties. The law is at best changing and technology is frequently cutting-edge. The execution of United Nations space agreements is the foundation of international law in outer space. These agreements primarily concern governmental space operations, they do not however expressly tackle intellectual property safeguard, which is necessary for the independent sector to participate economically in space operations. With increased engagement by non-governmental groups in the space environment, acknowledgement of their rights and duties in space will grow. Latterly, there has been a boost in the development of private and commercial activities in space.
Considering that privatisation reduces a state’s fiscal burden states have been in favour of private firms participating in public projects.[2]
Concerning outer space, intellectual property disputes this research paper outlines the important elements of the International Space Law regime and International Intellectual Property Law regime. They are concerned with concerns relating to joint ventures and patents, as well as diverse copyright patterns that require consistency to manage IP rights violations on a single platform.
RESEARCH METHODOLOGY:
According to changes in India and other nations, the present research study analyses the existing space regime and IP regime. Specifically, the research focuses on the strengths and weaknesses of the UN’s treaties and principles to find a feasible solution to the gap between the two areas. Also, due to the lack of a consistent framework for addressing IP concerns in outer space commercialization and joint venture initiatives the research intends to touch on those challenges. Principles, Treaties, Conventions, Journals, Research Papers, Internet Sources and Newspapers are some of the data sources mentioned.
REVIEW OF LITERATURE:
- In INTELLECTUAL PROPERTY PROTECTION IN OUTER SPACE – AN
OVERVIEW[3], the author intends to examine how intellectual property works in conjunction with the two international principles of space law and also how intellectual property protection works in space. He also examines the use of intellectual property protection structures regarding space activities. He also talked about how states should be encouraged to establish a legislative framework that addresses the demands of IP in space operations by adopting or agreeing to international good practices and standards.
- In Intellectual Property and Space Activities[4], a paper prepared by the International Bureau of WIPO firstly, discusses current intellectual property concepts and analyses their applicability to outer space operations. Part two explains international intellectual property law and international space law as well as some of the concepts that apply to both. The third part of the report deals with current actions inside the United Nations system including the World Intellectual Property Organization. Finally, a discussion on intellectual property protection in outer space is presented with a focus on a wide range of prospective economic activities that may take place there.
- In PAST, PRESENT, AND FUTURE OF INTELLECTUAL PROPERTY IN SPACE: OLD ANSWERS TO NEW QUESTIONS[5] the author Rosario Avveduto, studies international space law critically about intellectual property law. Firstly, there is a brief introduction to space law and a look at the foundational principles enshrined in the U.N. treaties on space operations.
Then the International Space Station Agreement is discussed in detail, as well as the current application of space law to intellectual property concerns. Lastly, he talks about Intellectual property in outer space is a difficult problem with many consequences. According to the comment, commercial expansion and innovation in outer space would either necessitate an updating of international space law principles or a wilful contempt for its provisions.
- In Certain Aspects of Intellectual Property Rights in Outer Space by Isabelle Bouvet, the paper delves into the subject of Intellectual Property Rights connected to space operations and Space Law is the focus of this study. The research paper talks about any possible conflicts that may exist between these two laws. The author talks about the need for a robust legal framework for Intellectual Property since private firms are becoming more involved in space. In the first section, he talks about the subject of Intellectual Property Rights in Outer Space with an emphasis on Patent Law.
After that, he examines particular laws included in the Intergovernmental Agreement in the International Space Station that pertain to intellectual property, data exchanges and commodities. The space sector is not adequately protected despite the existence of various legislative mechanisms.
- IMPORTANCE OF INTELLECTUAL PROPERTY IN SPACE.
Though space technology has always been cutting-edge technology, outer space operations are the result of creative inventions and the protection of intellectual property about outer space operations has only recently gained traction. That’s because space operations are progressively transitioning from government to private and commercial ones. Included in these operations are satellite remote sensing, direct broadcasting, microgravity research and production. Non-governmental organisations are becoming more aware of their assets in both tangible and intangible forms due to an increase in commercialization as well as privatisation. In addition, because of the lack of financial and technological resources government organisations are also working with private companies on space operations.
Private enterprises and government space agencies sign more licencing agreements. There must be anticipation that the investment in R&D will be repaid at some point. This means that protecting intellectual property rights in outer space operations has a beneficial impact on the engagement of the commercial sector. The second reason is that space operations are becoming increasingly globalised and that intellectual property rights protection in space is becoming more important than ever before. For example, the International Space Station (ISS) sees an increase in international cooperation in space operations. An international legal framework that’s easy to understand while still being consistent and dependable is therefore needed. Even though national intellectual property laws are well-harmonised, various national laws nevertheless apply different concepts to distinct areas of intellectual property. To safeguard intellectual property rights in space operations, a unified legal system is essential.
Thirdly, new commercial opportunities are developing as a result of the progress of space technology. It is still a fantasy for the average population to travel to space but technological advancements have opened the door.
Protection of intellectual property rights in space operations has historically been focussed on patent protection of technology produced or utilised in outer space together with the copyright protection of databases dependent on space data. If space tourism becomes a reality, protecting trademarks and industrial designs in outer space might become a big issue.
A legal system that safeguards intellectual property rights in space operations is therefore vital. Without such a system, international collaboration among nations and other groups involved in space research is less efficient. As a result of IPR protection creators and investors will be motivated to get more involved in space exploration.
- INTERNATIONAL TREATIES IN SPACE:
The United Nations (UN) and India have always placed great emphasis on any multilateral approach to peaceful applications of space after Sputnik’s launch in 1957. China, Russia, the United States, Japan and South Korea are the only countries that have not joined the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and its Subcommittees, the only international venue for the creation of international space law.
There were several legal concerns concerning space law during the dawn of the space age. The question of space sovereignty was a major concern. Control over space objects, accountability and governmental accountability for damages were also major concerns. Some questions have been raised, like anyhow space should be controlled in the same way as the water or the air or if anyhow space should be open to research. To address these concerns and challenges, the UN accepted an ad hoc commission on Peaceful Uses of Outer Space. It is crucial to highlight that several accords and agreements have been established in connection to space law norms up to this point and the International Law of Outer Space is based on these accords. The Outer Space Treaty of 1967, the Liability Convention of 1972, the Registration Convention of 1975 and the Moon Treaty of 1979 are among them. The Outer Space Treaty is the most fundamental of them all. The 1967 Outer Space Treaty as the first treaty on space law lays the groundwork for future developments in the field.
It establishes broad rules for space use and advancement. India is a signatory to five accords and treaties related to international space law established by the United Nations General Assembly i.e., “Outer Space Treaty”, 1967, “Rescue Agreement”, 1968, “Liability Convention”, 1972,”Registration Convention,”1976’‘, “Moon Agreement”1984”.[6]
- IPR REGULATIONS IN THE OUTER SPACE:
Intellectual property laws are typically limited to the territory of the country in which they are enacted. A country’s intellectual property laws determine whether or not intellectual property may be enforced in that country. Many national intellectual property laws have been harmonised through WIPO treaties and trade- related intellectual property rights, but there are still significant variations that contribute to differing levels of intellectual property protection in each country.
However, one of the most essential foundations of international space law is that no government may claim ownership of outer space (Article II of the Outer Space Treaty). As a result, “outside space” and “an object sent into outer space,” are defined differently under the Outer Space Treaty. According to Article VIII of the Outer Space Treaty, the state on whose registration an item is sent into outer space retains authority and control over that object as well as any persons on board. It also specifies who is accountable for registering objects in space in line with the Registration Convention. So long as an item is launched or launched from an approved registry by a “launching” state, it must be registered with that registry. Each launch state should decide which one will register the item if there are two or more launch states. Unless the launching states agree otherwise, the nation of the registry has jurisdiction and responsibility for the space object and any people connected to it. The nationality of a space object defines its power and control, to put it another way.
- OUTER SPACE AND INTELLECTUAL PROPERTY LAWS
Here we will talk about the foreseeable Intellectual property protections following Space exploration, firstly Copyrights, copyrights can be used to protect satellite broadcast and reception. Since the 1960s, preventing unlawful interception and exploitation of copyrighted material broadcast via satellite has been a global problem.
There is a serious deficiency in the same. Although Art 22 of the International Telecommunications Convention and Art 17 of the International Telecommunications Union’s Radio Regulations compel participating countries to keep some telecommunications secret its applicability to satellite signal interception is unclear. Direct broadcast satellite technology might potentially result in copyright concerns. The Brussels Satellite Convention was created to address this shortcoming.
As can be seen, no IPR can be asserted in space because it is traditionally viewed as a customary legacy of all people and secondly personal freedoms are far from being asserted under the OST, which requires the distribution of the advantages obtained from Space. As previously noted, this element is governed by Article VIII of the Outer Space Treaty which states that the launching State must classify the object and as a result will have authority over it. When there are two or more launching states, the parties must decide which one shall have jurisdiction and authority over the payload. Secondly, Trademarks, there is presently no procedure for providing trademark immunity to any innovations launched to space. Unlike a patent, it is focused on the character and branding of the products and services in question. Commercial and industrial upstarts such as SpaceX, Blue Origin and XCOR, for example, would fight to preserve their invention and character in space. Virgin Galactic is aiming to conduct commercial commerce in space and as a consequence, anyone who wishes to profit from this trade will need to obtain trademark immunity. Trading secrets can be used to safeguard the inventions of entities that can produce and run their space technology without a third party’s aid.
If an organisation has any data that might be employed in the functioning of its company or business and is important enough to have a real or potential economic worth then they fall under the category of a business asset.
- NEED OF IPR AND SPACE LAW HARMONIZATION
According to WIPO and WTO agreements, intellectual property is subject to the territorial or national laws of the various nations and there is some degree of harmonisation between these national laws. Therefore, extending these principles to space a domain of all mankind with vast prospects deserves a re-evaluation in light of its potential to weaken global space endeavours. An urgently needed unified and harmonised IP protection framework for space is required to safeguard the interests of emerging nations in the space industry.
There are new legal elements to IP rights in outer space such as the ability to obtain and execute rights, possess rights, resolve disputes and comply with international duties under terrestrial laws.
- REQUIREMENT TO SAFEGUARD INTELLECTUAL PROPERTY IN OUTER SPACE OPERATIONS.
While participating in an international forum for establishing a roadmap for the peaceful use of outer space in the 21st century, the United Nations-sponsored an intellectual property rights workshop in 1999. The recommendations made were:
- In light of the increasing commercialization and privatisation of space-related activities, more emphasis should be devoted to intellectual property rights protection. It is, therefore, necessary to consider both the UN’s international law principles, such as the non-appropriation of space and other applicable international agreements when it comes to the protection and enactment of intellectual property rights.
- Before examining the possibility of harmonising intellectual property laws in outer space, the commercial and public sectors must work together to enhance international cooperation and integration.
- Space technology intellectual property rights should be adequately protected by all states while promoting and enabling the open exchange of basic research knowledge. Space-related intellectual property rights education should be promoted.
- SUGGESTIONS AND CONCLUSION:
It might take us years to even explore the possibilities of space. It can supply resources that are now unpriced. Proper and appropriate techniques for space research can only be achieved via the technological and monetary teamwork of the independent sector and government organizations. Any organization has an incentive to innovate and create superior technologies since it has exclusive rights to its innovations which means no one else can use them. Intellectual property rights are the sole means to provide such an exclusive right. As a result, IPR legislation must be enacted in conformity with Space Laws for the exploration of space overall.
In outer space, IP rights take on new dimensions particularly concerning discoveries created there. Disputes between Intellectual Property Laws and Space Law regimes might be addressed by the development of a harmonised system by the worldwide IPR and Space Law communities under the aegis of UN bodies such as UN COPUOS and WIPO. The essential principles of international space law as well as other international commitments should be completely respected by such a harmonized system of Intellectual Property Rights regulation for outer space. It is also strongly advised that the harmonised system should include the concerns of developing nations and supports ethical and moral use of outer space for the welfare of the human race as a whole.
Developing a global framework for regulating IP laws in outer space cannot be stressed. Concerning issues such as whether national IP laws apply in outer space enforceability of IP rights, conflict resolution and harmonisation of intellectual property rights with other international commitments as well as ownership and entitlements in outer space the regime must address these issues. All of these concerns will eventually be solved as more and more people become aware of this growing sector.
REFERENCES:
- A.M Balsano, ESA Legal Affairs, Paris, Intellectual Property Rights and Space Activities.
- Avveduto, R., 2019. Past, Present, and Future of Intellectual Property in Space: Old ty in Space: Old Answers to New Questions. Washington International Law Journal, 29.
- Dan L. Burk, Protection of Trade Secrets in Outer Space Activity: A Study in Federal Pre-emption, 23 Seton Hall Review 563 (1993).
- Malagar, Leo & Magdoza-Malagar, Marlo. (1999). International Law of Outer Space and the Protection of Intellectual Property Rights.
- YADAV, AYUSH. (2012). IPR and its Protection in Outer Space Activities. SSRN Electronic Journal. 10.2139/ssrn.2001551.
Authored By – VARTIKA VAISHNAVI, a 2nd year student from KP. MEHTA SCHOOL OF LAW, NMIMS MUMBAI
[1] The World Encyclopaedia, n.d. Outer space. Available at: <https://www.newworldencyclopedia.org/entry/Outer_space> [Accessed 10 September 2021].
[2] Dan L. Burk, Protection of Trade Secrets in Outer Space Activity: A Study in Federal Pre-emption, 23 Seton Hall Review 563 (1993).
[3] Mehra, R., 2019. INTELLECTUAL PROPERTY PROTECTION IN OUTER SPACE – AN OVERVIEW. [online] Available at: <https://www.ili.ac.in/pdf/rm.pdf> [Accessed 10 September 2021].
[4] Wipo.int. 2004. [online] Available at: <https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf> [Accessed 10 September 2021].
[5] Avveduto, R., 2019. Past, Present, and Future of Intellectual Property in Space: Old ty in Space: Old Answers to New Questions. Washington International Law Journal, 29.
[6] Legalservicesindia.com. n.d. IPR protection in outer space activities. [online] Available at: <http://www.legalservicesindia.com/article/790/IPR-protection-in-outer-space-activities.html> [Accessed 13 September 2021].