This article is written by Swayamsiddha Das who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
Since childhood, the chapter on “Space” in the school science book has always been everyone’s favorite, be it a wide-eyed curious child or an aged person everyone in some or other way has been intrigued by it.
Space exploration through technological advancements has been there since time immemorial, but ever since globalization has begun, space activities have witnessed active participation of various private companies/entities helping the government to achieve the unachievable in outer space.
Involvement of private sector in space requires a huge amount of investment, as they provide various service like fabrication, broadcasting, supplying materials required to launch any kind of space vehicle, etc. but then the question of “Whether sufficient protection exist in the private sector for undertaking space activities?” therefore, without strong protection granted for patents, trademark, trade secrets, copyright, industrial design, etc. the private sectors will not have any kind of incentive for investment, hence it is very essential to recognize the IP rights that are associated so that private sectors can actively participate in the space exploration.
What is outer space?
The outer space region refers to 100 km above the earth’s surface. There is an area of air space beneath this region. However, there is no international agreement that has yet established the boundaries between air space and outer space, but through customary practices, it has been established that the spacecraft does not descend below 100 km and does not fly above that altitude as well.
What is IPR?
Intellectual property rights, as defined by law, are those rights granted to individuals for their intellectual creations by copyright, trademark, design, or patent protection. They confer on the owner or creator, like any other property right, the right to make a profit from their work both legally and economically. In the same vein, intellectual property laws are constrained by jurisdictional constraints. But what happens in the case of outer space? Are IP rights important when it comes to space? Can space be limited to jurisdiction and boundaries? Is there a need to have a balance between the IP right and Space Activities?
Why there should be a harmonization between IPR and space activities?
5 international treaties are currently governing laws relating to outer space. Out of which “THE OUTER SPACE TREATY OF 1967”, only addresses the governmental activities occurring in the space. Some important articles of the treaty are as follows:
Article-1 of the treaty: outer space is free for use and exploration by all states. i.e. the outer space can’t be claimed by any single state. It is regarded as “Res-Communis” which means in the public domain or public property.
Article-2 of the treaty: outer space should not be subject to any kind of national appropriation through sovereignty.
Article-8 of the treaty: deals with the jurisdiction and control over a space object any personnel thereof shall remain in the state which registers such space object.
The treaty on a primary basis is focusing on the governmental activities happening in the space only and has somewhere ignored the role of IP rights. This ignorance of IP rights in case of governmental activities has not been an issue until now, but then things will take a whole new turn if these IP rights are ignored in case private sectors are involved commercially in space-related activities.
From this, it is very well established that when it comes to national laws and international agreements providing IP protection on Earth are well known and defined but when it comes to space there are a lot of unresolved areas which need a lot of attention.
Various IP rights and space
Practically if we look into the situation carefully developing IP laws are the need of the hour if the outer space activities are in a process of constant evolution. With the advancement of technology and the development of new technology for space activities, the determination of certain aspects related to IP like if the manufacturing, inventions, licensing of products like software, etc. fall under the ambit of IP protection or not?
Role of copyright in outer space
The term “originality” even if not defined specifically in the copyright act, is still considered to be an important yardstick for determining if the work is qualifying for copyright or not. Copyright subsists in the work of original literary, dramatic, and artistic works. As the space activities are considered, the raw data collected by these satellites have no copyright value. However, copyright exists in the final processed or value-added data that is generated after disseminating the raw spatial data.
Having said that another issue that props up is regarding who is the author of such work? As it is known that according to the author/creator of the work is considered to be the first owner of the copyright, but then it is not easy to identify who is the owner of such work as it is the machine (Earth observation satellites) who collects it without any kind of human involvement in the outer space.
The level of originality needed to apply for copyright protection varies depending on the country’s copyright laws. This will mean that while a specific type of spatial database could be given copyright protection in some countries, similar data will not be protected in others.
But then, the images transmitted by these Remote Sensing Satellites are used in weather forecasting, environmental monitoring, terrain mapping, and other applications, and have significant copyright value.
Role of trademark in outer space
The main idea of Trademark is to protect the goodwill attached to the product and services of the company. Trademarks must be distinctive and original so that they can act as a source identifier in the market. Trademarks can be in the form of words, symbols, a combination of colors, etc.
While dealing with trademarks and outer space, there have not been many issues regarding it. However, the trademark will not be able to avoid infringement in outer space for much longer. Trademarks for products and services used in space must also be properly protected to prevent misunderstanding, diffusion as well as enable third parties to differentiate the invention from that of another.
That is why, even though the Space Act is not actionable outside of the United States, NASA has to build up an international trademark portfolio of trademarks. It has been registered in the EU as well as seven other nations, including Canada, Germany, Japan, and the United Kingdom. These registrations prevent the use of the NASA insignia (blue “meatball”), NASA Logotype (“worm” logo), and NASA seal on products, publications, or webpages that are not sponsored by NASA.
NASA is a very reputed organization hence it is imperative that private companies would like to cash upon the goodwill of NASA. This is where the role of a Trademark becomes super important. The trademark will prevent companies from applying the NASA logo on their product, for instance, BLUE ORIGIN of Bezo’s wants to apply the INSIGNIA logo of NASA on their space product (Rocket, Spacecraft) they can’t do it directly as it will infringe the rights of NASA, however, if they get prior permission from the giant organization they can utilize the logo.
This is how organizations involved in space exploration can protect their logo, goodwill associated with their mark, and protect their reputation in space.
Role of patent in outer space
Patents are granted to inventions if they are unique and new. Normally patent law grants exclusive rights to the inventor which excludes others to use, make and sell a patented invention for a limited period. To make your invention should have 3 things:
- The invention should be novel.
- The invention must be non-obvious i.e. there must be a significant change in the invention as compared to the previous one.
- The invention should be useful for mankind.
The entire technical method used to gather raw data from outer space using a Remote Sensing Satellite has been patented as an invention. Every remote sensing satellite uses a technique and technology that is special and exclusive, and therefore patentable. When it comes to patent law for outer space, issues arise when an invention is used or infringed upon in space.
- Invented on Earth and applied in Space:
To this issue, the answer is simple, the patent system of the country where the invention was made will be followed and the patent will be registered only in that country. After that, the space object can be launched into space following various international treaties and other space rules. Virginia Galactica, Solar panels in the International Space Station (ISS) would serve as an example for an invention made on earth and applied in space.
- Invented on Space and applied on Earth:
To this issue, the answer is a bit difficult as it is not practically possible to determine which jurisdiction will be applicable on inventions related to outer space outside of the country’s territorial limits. As of now, there is no concrete answer to this, but in case of dispute, the inventors should register their inventions with the patent office of the country whose service they are utilizing or any other reason that is convenient to them.
- Invented in Space and applied in Space:
This can be a very complex issue as it is dealing with the idea of inventions that are not only made in space but are even used there. Such inventions are more vulnerable to infringement as there are no proper adequate space control that can assess the act of infringement when an invention is used in space, and even if it is determined it will face problems with regards to the application of laws.
There is still some ambiguity that is surrounding the patent law concerning space, hence clearing these ambiguities and protecting inventors’ rights by providing incentives to continue their work would help to boost innovation and exploration. Setting patent law in space will prevent space companies from having an unfair advantage due to their registration country.
Role of trade secret in outer space
Trade secrets can be used to secure the creations of entities that are self-sufficient and can produce and operate their space-related technologies without the assistance of a third party. They refer to any information owned by an entity that can be used in the management of the entity’s company or corporation and is important enough to give the entity a real or possible economic advantage over the competition.
Role of industrial design in outer space
The role of industrial design in outer space plays a very significant role, as the whole aesthetic element of the invention is dependent on it. Apart from that, design of a certain invention would enhance the overall quality, experience of the product.
Ex: SpaceX recently upgraded its “Dragon Capsule” by placing a touch screen control panel to a crew capsule. This addition to the capsule helped the Astronauts experience a more earth-like experience but also increased compatibility and sustainability. This adaptation via design was considered to be the most groundbreaking experience in the Space Mission.
Therefore, as other IP rights industrial designs for space, should also be given protection and the rights of the original/novel creator must be upheld as it is the designer of the space product who uses its intellects to foresee things beyond the horizon, combines its scientific knowledge to enhance the overall look, appeal, and experience of the product.
Conclusion
With the advancement of technology, space activities have undergone a tremendous paradigm shift. With the increase in a space mission, implementation of IP rights and protecting the rights of the author/inventor/company, etc. in our Space law is the need of the hour.
Having said that it might not be an easy task as Space law is a part of international law and hence homogenous for all countries whereas IP rights are territorial in nature, hence there is a lot of ambiguity surrounding when it comes to the implementation of IP rights and Space law. But this can be solved if the states revise their IP rights concerning Space laws and come up with a much more structured policy.
References
- https://www.kashishipr.com/blog/aligning-outer-space-and-iprs-a-pressing-priority/
- https://www.mondaq.com/india/patent/842270/patents-beyond-land-applicability-and-infringement-of-inventions-in-outer-space
- https://blog.ipleaders.in/need-intellectual-property-rights-outer-space/amp/
- https://selvams.com/blog/outer-space-and-intellectual-property-rights/
- https://www.mondaq.com/india/patent/1038616/ip-laws-in-outer-space
- https://www.mondaq.com/india/trademark/762020/intellectual-property-law-and-the-outer-space-a-promising-future-ahead#:~:text=Intellectual%20Property%20Rights%20in%20Space,territorial%20boundaries%2C%20in%20the%20Space
- https://www.ili.ac.in/pdf/rm.pdf
- http://www.legalservicesindia.com/article/790/IPR-protection-in-outer-space-activities.html
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