Protection of Intellectual property rights in the final frontier

Introduction

In 2013, Canadian astronaut, Chris Hadfield posted a video of him covering the famous David Bowie song ‘Space Oddity’ in zero gravity from the International Space Station on the popular video streaming site, YouTube[1]. Loved by many, it came as a shock when approximately a year later, the video was suddenly taken down. Many speculated that issue had something to do with copyright infringement in outer space and thereafter questions of applicability of protection of intellectual property rights in outer space came to be a hotly debated and discussed topic. Even though the actually reasoning behind the whole Chris Hadfield-David Bowie incident was a bit more mundane[2], the discussion that it generated is of great importance and novel.

Intellectual property, outer space and space law

Intellectual property rights protect creations of human intellect. It is based on the utilitarian, incentive based theory, which is widely accepted today[3]. It confers upon the inventor/creator a legal right to be the sole owner of the creation or invention and reap the benefits of the profits to be derived from such work of creation. By incentivizing creators, it consequently acts as the driving force behind the development of society. Another dimension or usefulness of granting intellectual property rights is that it encourages works of creativity, inventions etc. to be brought to public light for the betterment of the larger public in general rather than keeping it a secret in fear of getting their work stolen.

Outer space is often referred to as whatever lies above and beyond the earth’s atmosphere. In an attempt to denote this separation, the term Kármán line is used[4]. In other words, may be said to be the starting point of space at 100kms above the earth’s mean sea level.  The origins of space exploration is rooted in the race to establish hegemony, during the cold war era[5]. Therefore, it has been and continues to be a topic of great interest, requiring a lot of research and experimentations and any result or discovery made in this regard is a fruit of human intellect, bringing in new ideas of development in various fields of science, medicine, and communications and to the life itself. The launch of Sputnik 1 by the then USSR, opened new doors to mankind regarding discovering the secrets of the largely undiscovered world of outer space. As the fascination for exploring space grew around the world, this subsequently ushered in the era of talks for the need to regulating human activities in outer space. This body of laws and regulations, known as space law includes the sum total of legislations national and international, which were enabled by the creation of different regulations, treaties, agreements and conventions. The body of space law manages and regulate worldwide, the international and national commercial and governmental and international or national defense activities related to outer space.

Space exploration in the competitive globalized world is no longer limited to the governmental agencies and the participation of private entities is not only welcomed but also encouraged. However, to incentivize and protect the interests of these private entities’ contribution to space exploration, the protection of intellectual property rights is of growing significance. Since space exploration is not possible without taking in account space law and participation of private entities in space exploration is not possible without IPR protection, there is a necessity to evaluate possible IPR protections in juxtaposition with space law.

The major heads of intellectual property rights protections include-

Trade secrets: these include information which have economic value due to their availability and existence being known only by selected few people and sufficient steps are taken by those persons or groups of people to keep such information a secret

Patents: are protected intellectual property which are given for any invention made by an individual or group of individuals. Invention also includes to mean introducing a new way of doing something or something which offers a new solution to a technical problem

Copyrights: confers exclusive rights to the authors which protect their works of literature, music, arts etc. it protects from of artistic expression.

Trademarks: A trademark is usually a word, group of words, sign etc. which are mostly used to promote brand identity in an effort to distinguish products of one competitor from the products of another in the competitive marketplace today. Trademarks are protected by intellectual property rights. 

The aim of this article is to explore the following questions:

  1. What are the sources of conflicts between space law and the application of IPR protection in outer space?
  2. What is the scope of the territoriality principle of IPR in relation to extraterritorial activities? And what is its implication or what remedies are available when there is an infringement of such IP rights?
  1. Conflicts between principles space law and IPR regime

Space tech has outgrown existing space law

Space law, as a matter of public international law seeks to regulate and maintain human space activities through various international treaties and international agreements etc. Certain principles important principles which governs important space related treaties come in direct conflict with the applicability of the concept of granting protection of IPR and thus the creation of a private right. The origin and development of space law was developed at a time when such activities were largely undertaken by state and therefore, prioritizing IPR laws and growing demand to protect the interests of private entities was not considered.

Firstly, for securing and enforcing the protection of intellectual property rights, the concept of territoriality or in other words, state sovereignty is important as laws relating to IPR is different in different countries. This concept of sovereignty is at odds with space law where claims of sovereignty cannot be made and indeed is actively discouraged from doing so as enshrined in various international space treaties. For example, the first well established international treaty governing the goals of human space exploration, the U.N. Outer Space Treaty[6], formalized the altruistic intentions which ought to govern such developments. Articles 1 and 2 of the Outer Space Treaty indicate that exploration of outer space ought to be for the development and benefit of all of mankind, encouraging international cooperation in this regard, rejecting claims of sovereignty and a ban on the installation of weapons of mass destruction. Similarly, the declaration on International Cooperation in the Exploration and use of Outer Space for the Benefit and in the interest of all states 1996[7], the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST)[8] and article 66(2) and 67 of TRIPs Agreement[9] had particular considerations for developing countries reiterated that exploration of space was meant for the betterment of the whole of mankind and should be with respect to peaceful purposes. Outer space treaties in this way, herald the freedom principle[10]. Therefore, there is a clear difference in attitude between space law which strives to encourage and create a common pool of knowledge accessible to all for their development whereas, granting IPR rights create exclusive rights on the use of such knowledge, creating a monopoly. On the other hand, it is also undeniable that in the absence of protection of IPR, it will have adverse effects on space research and development by de-incentivizing the use of resources and human intellect when people do not get profitable returns from it.

United Nations, built on the principles of maintaining international peace and harmony deliberately imposed these types of restrictions on space exploration, the use of other celestial bodies and other space related activities in its Treaties along with other international instruments. These now outdated policies, which appear as overly altruistic in nature and possibly as hindrance in the competitive community of space race were once a necessity on the backdrop of the hostilities of the ongoing cold war during that time where “space was deemed to have the potential to become the ultimate frontier for conflicts on the global scale”[11]. Commercialization of space was probably not thought of as widely and commonly as it is now. It was largely a state business and therefore, possibilities of conflict were something that could be imagined. The treaties were formulated and meant to be safeguards against fears of ‘militarization of space’[12] .Times however have changed since then and with growing participation of private entities, protection of intellectual property rights have emerged as the need of the hour. There is a need to strike a balance between private rights and the public rights. In the absence of such private rights, it would lead to stalling in the development of space activities and hence, adversely affect the scientific and technological development. A possible solution might be to ease down on the idealistic ideas of international collaboration with regards to pooling scientific ideas discoveries related to space as long as the ban on all claims of sovereignty in the outer space and other celestial bodies remain intact. It should be kept in mind that granting IP rights will increase completion and such pressure also leads to incredible feats of discoveries and developments

2. Principle of territoriality in extraterritorial space- protection and infringement

One of the most widely accepted and primary principles of intellectual property rights is the principle of territoriality which states that intellectual property rights cannot be enforced in territories beyond the one which granted such protection. It is based on the principle of state sovereignty and allows different nations to develop their own IPR rights in accordance with the specific societal goals they wish to protect or promote. Globalization and maximization of inter-state trade, lead to the origin and adaptation of international intellectual property rights treaties in an effort to protect the IPR rights of their citizens abroad[13]. These international systems such as the Paris convention for the protection of industrial property[14] and the Berne Convention for the protection of literary and Artistic Works[15]  and Trade-related Aspects of Intellectual property Rights (TRIPs)[16]. While the former two do not encroach upon the territoriality principle, it just guarantees the standard of national treatment protection for all member states, the TRIPs agreement establishes a uniform minimum standard needed to be followed by all at a national level. However, despite this the territoriality principle is hardly compromised since TRIPs allows for flexibility that countries can use to mold these standards according to their liking by using the defense of promoting technological and economic development[17]. Thus there does not exist a single international standard of protection of IPR. Therefore, it becomes difficult to ascertain what the case would be in outer space where there are no territories.

With regards to the regulations which would be in force when there is use of protected IP material in outer space is simple- it would the application of the territorial domestic law. However when the IP invention of creation takes place in outer space, the answer becomes difficult.

In order to determine the level of protection accorded to and the consequences/remedied available in instances of IPR infringement in space activities, it is important to ascertain jurisdiction. The Article VIII of the Other Space treaty establishes that the jurisdiction of the objects or personnel which are launched into space shall be with the state of registry. Supplementing to this, the Outer Space Treaty read along with Article II (1) of the Convention on Registration of Objects Launched into Outer Space (Registration Convention) confers an obligation of the state of registry to register such launches, thereby conferring jurisdiction

If we consider the development of space law as parallels to the development in maritime and aviation law, since both bodies of law developed in response to urgent needs in the global sphere[18], then in order to ascertain jurisdiction in space, we can apply the doctrine of quasi-judicial territory applicable to a vessel/ship and aircrafts to objects launched in space as well. Under this doctrine, it would mean that the space object will be subjected to the national law of the registry country and under Article VIII, to personnel as well. For example the flag-state jurisdiction under the law of seas is a manifestation of this very principle. But the jurisdiction provided under the space treaties is different from the flag State jurisdiction. Under flag stated jurisdiction, the law of the flag state is applicable only on board but the in case of outer space objects, it extends to the vessel as well as personnel. Thereby protecting inventions/creations or other such IP not just within the vessel but also outside the space object.

The International Space Station Intergovernmental Agreement is an example of how these principles of protecting IP in outer space has been incorporated already.  Article 21(2) of IGA by deeming fiction extends the doctrine of quasi-territoriality to International Space Station[19]. However, there is a glaring lack of domestic legislation of the issues of applicability of IPR in extraterrestrial space. United States the only country which exclusively talks about patents in outer space. Under section 105 of its patent legislation, it states that any invention made, used, or sold in outer space on a space object or component thereof under the jurisdiction and control of the United States must be considered to be made, used, or sold within the United States[20]. Other heads of IPR do not have similar domestic legislations.

However, the concept of application of territorial laws on respective registered objects and personnel is not without conflicts. In the age of globalization and increased international collaboration, initiatives like the International Space Station and the determination of applicable regional law may lead to confusions. Where there is an involvement of involve multiple parties of different nationalities; both in terms of State jurisdiction over persons and objects and of judicial jurisdiction over persons’ claims and actions. In such scenarios, the essence behind collaborative work and private protection owed to works of human intellect clash. If anything, all these issues are an urgent indicator of an international framework of regulations protecting IPR in outer space because enforcement of domestic laws are fraught with possibilities of conflicts and non-uniformity

Conclusion

In the national context, India despite being having of the biggest and successful national space organization, does not have a space legislation of its own, although it is a member of the important international space treaties discussed previously.  The introduction of the draft Space activities bill of 2017 however may bring a sea of change. The bill aims to promote and regulate Indian space activities and increased commercialization. The bill also contains certain specific provisions related to IP protection created in the course of space related activities. However, several critiques of the bill have already found problems with the provisions and how far it is able to actually able to protect rights of private entities. Since the bill still has not been passed there is scope for corrections. The bill, shows the government’s willingness to open up the world of space activities to private-a welcome start.

Today the idea of launching private satellites, space tourism, space cargo, transportation etc., are not considered to be very far fetched ideas. In a rapidly developing scientific world, the exploration of the space picks up pace, we must ensure that well formulated legal support system is in place to carry on such activities without giving rise to any conflicts. The legal community must ensure, that law does not fall behind when science advances at astronomical speed.


[1] Chris Hadfield, ‘Space oddity’ (May 13, 2013) https://www.youtube.com/watch?v=KaOC9danxNo&ab_channel=RareEarth accessed 27 September, 2021

[2] Essentially Chris had obtained prior permission from David Bowie for covering the song and such permission was given for a year. After the completion of the time period Hadfield simply abided by the terms of the agreement and took down the video (although later on permission was granted for the video to stay up). Additionally, it was revealed that Chris recorded the song just before the touchdown of the spacecraft which still subjected them to terrestrial intellectual property rights laws.

G.F., ‘How does copyright work in space?’ (Economic Times, 23 May 2013)  https://www.economist.com/the-economist-explains/2013/05/22/how-does-copyright-work-in-space accessed 27 September 2021

[3] William Fisher, Theories of Intellectual Property, in New essays in the Legal and Political Theory of Property (CUP2001).

[4] Nadia Drake, ‘Where, exactly, is the edge of space? It depends on who you ask’ (National Geographic , 20 December 2018) https://www.nationalgeographic.com/science/article/where-is-the-edge-of-space-and-what-is-the-karman-line accessed 27 September 2021

[5] Rosario Avveduto, ‘Past, Present, Present, and Future of Intellectual Property in Space: Old ty in Space: Old Answers to New Questions’  (2019) 1(29) Washington International Law Journal https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1829&context=wilj accessed 27 September 2021

[6] Outer Space Treaty of the year 1967, available at: http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html

[7] Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, 1996, available at https://www.un.org/documents/ga/res/51/a51r122.htm

[8] Report of 2nd Session of World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), available at: https://unesdoc.unesco.org/ark:/48223/pf0000132962

[9] TRIPS Agreement, 1995, available at: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf

[10] Ritesh Mehra, ‘Intellectual Proprotection in Outer space- An Overview’ 2019 (2) ILI Law Review http://www.ili.ac.in/pdf/rm.pdf accessed 27 September 2021

[11] Rosario Avveduto, ‘Past, Present, Present, and Future of Intellectual Property in Space: Old ty in Space: Old Answers to New Questions’  (2019) 1(29) Washington International Law Journal https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1829&context=wilj accessed 27 September 2021

[12] Ibid.

[13] Emmanual Kolawole Oke, ‘Territoriality in Intellectual Property Law: Examining the Tension between Securing Societal Goals and Treating Intellectual Property as an Investment Asset’ 2018 2(15) Scripted A journal of Law, Technology & Society https://script-ed.org/article/territoriality-in-intellectual-property-law-examining-the-tension-between-securing-societal-goals-and-treating-intellectual-property-as-an-investment-asset/ accessed 27 September 2021

[14] Paris Convention for the Protection of Industrial Property, 1883 https://www.wipo.int/edocs/lexdocs/treaties/en/paris/trt_paris_001en.pdf accessed 27 S September 2021

[15] Berne Convention for the protection of literary and Artistic Works, 1886 https://www.wipo.int/edocs/lexdocs/treaties/en/berne/trt_berne_001en.pdf accessed 27 September 2021

[16] Trade-related Aspects of Intellectual property Rights 1994 https://www.wto.org/english/docs_e/legal_e/27-trips.pdf accessed 27 September

[17] Trade-related Aspects of Intellectual property Rights 1994 arts. 7 and 8.

[18] Lauren Peterson, ‘Governing the Unknown: How The Development of intellectual property law in space will shape the next great era of exploration, exploitation and invention’ (2021) 3(18) Nothwest Journal of Technology and Intellectual Property https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1347&context=njtip accessed 27 September 2021

[19] The International Space Station Intergovernmental Agreement art 21(2) https://aerospace.org/sites/default/files/policy_archives/Space%20Station%20Intergovernmental%20Agreement%20Jan98.pdf accessed 27 September 2021

[20]  Sandeepa Bhatt B. ‘Invention in outer space: need for reconsideration of the patent regime’ (2010) 1(36) Journal of Space Law https://airandspace.confit.dev/pdfs/jsl-36-1.pdf accessed 27 September 2021

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