Application of Intellectual Property Rights to the Space Industry

    The Soviet Union had launched the first man made satellite on October 4, 1957, that is Sputnik, into Earth’s orbit.[1] Twenty three years later, in 1980, there were 1,058 satellites in orbit and fifty-two other satellites divided between lunar and solar/planetary orbits.[2] Currently, there are several major satellite communications projects planned which will put hundreds more satellites into orbit,[3] as well as an attempt by a coalition of equatorial countries to assert that their sovereign property rights extend 22,300 miles into space.[4] Therefore, it is clear that space is being exploited at a rapid pace, matched by a commensurate swift development of the field of space law.

    The space industry is slowly transferred to private entities due to which there are many benefits and implications. This concept of private enterprises being active in space is called “The New Space Industry”. As mentioned above the era of privatization started in 2004 when privatized space travel was legalized. From then onwards more are joining in a new space race. In recent years, companies like SpaceX, Virgin Galactic, etc., have been taking a more active role in space travel. There are instances where some companies and private sector agencies are bringing cargo to ISS by using private shuttle and mining precious metal present on the asteroids.

    Apparently it is visible that there are many benefits for this Privatization but there are many implications out of this and many issues relating jurisdiction will crop up among nations. Nevertheless these on-going expansions in the space industry creates more economic risk for private sector financiers hence such asset based investment facilities which are required to be protected and stabilized under law. As a consequence of the above development there is a steep raise in Intellectual Property Right claims by private entities.

    Overview of Intellectual Property Rights

    As per Article 2(viii) of the Convention Establishing the World Intellectual Property Organization [WIPO] the rights related to “Intellectual Property” are as follows:

    • Literary, artistic and scientific works;
    • Performances of performing artists, phonograms, and broadcasts;
    • Inventions in all fields of human endeavor;
    • Scientific discoveries, etc.

    They are various IPR that are given to the above works and they are:

    1. Patents: It is generally given to safeguard inventive ideas and processes which are useful and non-obvious. It is given for 20 years in India and after that it would come into public domain.
    2. Copyright: This would protect the manner in which the ideas are expressed but not the ideas. With certain exceptions such as using for educational purposes, etc., these copyrights generally allow the owner to protect it from reproduction performance, new versioning, etc. It is given for 60 years of the author or artist and for another 60 years from the date of death of the author or artist.
    3. Trademarks: It is generally given to a recognizable sign or expression and it is given for 10 years for a person and can be renewed for each 10 years.
    4. Design: The shape, configuration, pattern, ornament or composition of lines is protected under the design law in IPRs. The duration for that is between 15 years to 50 years.

    If any work is given with any of the above IPR then the owner has the exclusive right to use it or he gives license of it to third parties to use for some consideration otherwise they have to face the legal consequences.

    IPR related Provisions and Role of IPR in Space Law

    From 1957, deliberations regarding the usage of outer space and its control mechanism have taken place between the two superpowers on a bilateral basis and on a multilateral basis at the United Nations General Assembly and at the United Nations Committee on the Peaceful Uses of Outer Space. Currently the five principal agreements in the arena of space law which are formulated by the United Nations Organization (UNO) among which none of them specifically deal with IPR. They are:

    1) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of January 1967 [Outer Space Treaty:[5]

    The notwithstanding clause of the Outer Space Treaty which says that “Space is the common heritage of all mankind and that all nations have access to space and the resources contained within it and that the territory in outer space, on the moon or other celestial bodies cannot be claimed by any nation.”

    2) The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of April 1968 [Astronaut Agreement][6]:

    The agreement has been introduced for the expansion of duties in the Outer Space Treaty to render assistance to astronauts who are in trouble.

    3) The Convention on International Liability for Damage Caused by Space Objects of March 1972 [Liability Convention][7]:

    This convention has a two-fold purpose that is to prescribe rules of international liability or damage caused by space objects, and to provide a procedure for the promotion of payment of a full and equitable measure of compensation to victims of such damage.

    4) The Convention on the Registration of Objects Launched into Outer Space of January 1975 [Registration Convention][8]:

    The background behind this registration convention is to protect the peaceful use of outer space by creating a duty for states to create a registry of spacecraft that it launches and to make that registry available for public inspection.

    5) The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies [Moon Treaty][9]:

    The final most controversial child of the Outer Space Treaty is the agreement governing the activities on the moon and other celestial bodies. It is the only one among five treaties which is not ratified by the US, Russia, China.

    Other than these above laws which did not deal with the IPR in specific, but in the declaration by the United Nations Committee on the peaceful uses of Outer Space on International Cooperation in the Exploration and use of the Outer Space for the benefit and the interest of all States, taking into particular account the needs of the Developing Countries, which was adopted in 1996. The second paragraph of it states that:

    States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. Contractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned as, for example, with intellectual property rights

    Role of IPR in Space Law

    The role of IPR in space is increasing because of various reasons. They are as specified below:

    1. The increase in privatization and commercialization activities such as direct broadcasting, remote sensing from space, etc.
    2. More consciousness of private entities or non-governmental agencies of their  “property”  both in tangible and intangible forms.
    3. Development of globalization of space activities. Installation of the International Space Station has raised the participation of different countries in the race of exploring outer space. There are differences between national legislation related to IPR and the international regime. So when disputes arise between nations regarding the IPR then they challenge the legitimacy of international law and this lack of legislation is also a reason for the urge of its development.
    4. The improvement of Space technology, new commercial possibilities are increasing such as space tourism and so it concerns about the protection of inventions by patents. This would bring competitiveness and as a consequence the quality of services provided by space agencies would increase.

    These are some of the reasons because of which the Intellectual Property Rights (IPRs) role is increased in the Space Industry.

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    Concerns related to Intellectual Property Rights and Space Law

    There are various concerns related to the IPR regime in the Space Industry. Such as:

    1. Applicability of national IPR law in Outer Space

    The Article 2 of the Outer Space Treaty talks about non-appropriation of outer space and should be used for common good. And this contradicts the law related to IPR and also there are differences in various IPR laws. Harmonization of the same is required for not having many disputes related to Intellectual Property rights.

    1. Enforcement of the IPR in Outer Space:

    It is subject to the boundaries/demarcations of the countries. Like if any dispute arose it should be dealt by the countries under which such dispute has jurisdiction. Deciding such jurisdiction depends on the demarcation of boundary lines between countries in outer space like air space. Until that is achieved, enforcement of IPR in outer space would be difficult.

    1. Role of Arbitration and Mediation:

    Outer Space Activities in most of the cases involve IPRs registered in one or more jurisdictions. The increase in the number of trade/business agreements in relation to the space events increases the number disputes. In those circumstances the Alternate Dispute Resolution (ADR) procedures play a vital role in resolving issues in a short time and can have more chances of enforceability of the Awards passed in by those tribunals.

    1. Synergy between other treaties and IPR law:

    As already mentioned above as per Article 2 of the Outer Space Treaty, 1967 the outer space should be used harmoniously and so such IPR would affect such principles adversely. So there is a need to enact a law which harmonizes other treaties and IPRs.

    1. Ownership and entitlement Issues:

    There is a lot of ambiguity regarding the Registration Convention and Liability Convention. One state can be liable even though it is not a registered state. Merely launching a space object would make a state liable under liability convention. So if this IPR regime is brought into space then there would be a surge of Disputes related to patents and other IPR rights. Ambiguity would be created as in the case of registration and liability conventions about the entitlement issues.

    So these issues should be dealt with carefully while having a harmonized law related to IPR at the international level in Space Law.

    Conclusion

    The financial contribution and development in technology from the private sector in the field of space would increase more in the upcoming days and having a good law on the IPR is the need of the hour now. Many opportunities would be created on behalf of the improvement of new space technology by the non-governmental bodies. That would enhance the participation of the private parties and number of public policy legislations is required for protection of the assets so created. In future the IPR protection would be a key one where the institutional establishment and regulatory environment would further increase in the field of space business. The first and foremost thing is to have an efficient legal framework.

    Even though harmonization of all regional and national IPR law would decrease the problems related for the efficient working of legal framework once it is formed at the international level, but the basic and fundamental issue regarding the establishment of an appropriate legal framework for identifying and exercising intellectual property rights in connection with extraterritorial activities, remains unresolved. In order to remove any legal problems, a simple and effective international framework would suffice for making the best use of public and private resources in the arena of Space Technology for the benefit of all countries as specified in the Outer Space Treaty, 1967.

    REFERENCES

    [1] Gennady Zhukov & Yuri Kolsov, International Space Law 38, ISBN-13: 9780030698125 (1984).

    [2] Carl Q. Christol, The Modern International Law Of Outer Space 4, ISBN-13: 978-0080293677, (1982).

    [3] Motorola’s Iridium project, with 70 satellites planned for low Earth orbit, has been well publicized. Patrick Seitz, “Iridium Venture Sews Up Equity Financing”, SPACE NEWS, Sept. 26-Oct. 2, 1994.

    [4] Bin Cheng, “The Legal Regime Of Airspace And Outer Space – The Boundary Problem: Functionalism Versus Spatialism – The Major Premises”, V Annals Air & Space L. 323 (1980).

    [5]  Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205

    [6] The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119.

    [7] The Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 197.

    [8]  The Convention on the Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15.

    [9] The exception among these widely ratified instruments is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December, 1979, July 1I, 1984 1363 U.N.T.S. 22.


    BY SRAVANI K | NLU, VIZAG

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