This article is written by Rajat Chawda, from the Institute of Law, Nirma University. In this article, it is described the need for the development of intellectual property rights in outer space and the reflection on the present situation is addressed.
An individual works more when he gets incentivized. It’s human nature to seek something for something done. It is to fulfill that aspect of human nature, there are IP laws existing which protect the intellectual creations of creators. With the rapid development in science & technology and the quest for mankind to go beyond the confinements of the Earth, various institutes and organizations are investing their time and money in outer space activities, through developing advanced space technology or by conducting research. This money and time will be wasted if they are not incentivized for the pains they are taking. To fulfill this concern of these entities there is a need for IPR regulation in the outer-space activities, which is currently not available. This article first discusses the present territorial forms of IP laws available, then proceeds towards why these should extend to outer-space activities and the present IP laws governing the outer-space activities.
Forms of IPR
Before knowing how IPR is an important part of outer space laws, it is first important to understand the existing territorial IP laws and how they are important to be dealt with in outer space activities.
At a global level, WIPO is the intergovernmental organization since 1974, which is one of the 16 specialized agencies of the UN system of organizations responsible for the promotion of the protection of intellectual property throughout the world. This is achieved by cooperation and collaboration among States and other national-international organizations and for the administration of various treaties concerning intellectual property.
The following are the forms of intellectual property rights which cover a wide range of various creations of the human mind:
Patent not only protects the intellectual property of the owners but also encourages generations of researchers and inventors to further develop an innovation. How is this provided? A patent is an exclusive right granted to an invention that is innovative, does something inventive to solve a problem. The patent holder gets the right to prevent third parties to use, sell, make, offer to sell such patented technology without the consent of the owner. The right to decide who may or who may not use this protected property vests with its owner. The patent owner has also the right to transfer these rights to a third party, making him the owner of the property.
Nothing in this world comes free of cost. In exchange for granting such moral and economic rights to the owner of the property, in return, the owner of the property has to disclose information related to their invention in order to enrich the technical knowledge in the world.
Hence, a patent promotes further creativity and innovation by others. Patent protection lasts for 20 years from the date of filing of the application.
Generally, a trademark is a concern for the protection because of significant goodwill and credibility attached with a mark of a company. They are signs which provide a distinction between certain goods or services provided by a person or company with those rendered by others. The major requirement of a symbol or sign to get trademark protection is that it should be distinctive and not deceptive. Trademarks can consist of various characteristics like distinct sound, taste, color, drawings, 3D symbols, etc which creates a distinction between the goods or services provided by others.
A trademark grants exclusive rights to use the symbol to identify goods or services and it also provides the right to authorize the use of such marks by third parties in return for a certain payment. Trademark protection can be used indefinitely in return for a payment of renewal fee.
The protection of the physical appearance of an entity is provided by industrial design rights. It is the ornamental or aesthetic appearance of an article, how it should be perceived in physical form. The design may include either two-dimensional features like patterns, lines or colours or three-dimensional features like shape, size, the surface material of the article. Mostly, these rights are granted only to the aesthetic nature of design and no protection is accorded to its technical features.
The owner of an industrial design gets an exclusive right over the protected design. This vests a right to prevent others from unauthorized copying or limitation of the design by others. The protection of design ensures a fair return on investment. It also ensures fair competition and honest trade practices, encouraging creativity and therefore making more aesthetic and attractive products. The protection of industrial design is granted generally for a term of 5 years and the further renewal periods increase this period in most cases, up to 15 years.
Copyright protection extends to literary and artistic works like novels, poems, plays, newspapers, films, musical compositions, paintings, drawings, films, etc. There are no formalities attached to get the protection of copyright. As soon as the work is created it is deemed to be protected by copyright from the moment of its creation.
The copyright is vested with two categories of parties:
Rights of original creators
The creators of works have exclusive moral and economic rights. Their heirs also have certain basic rights. The creator has the right to authorize others to use his creations as per the terms agreed upon. The creator can authorize or prohibit broadcasting, recording, reproduction, public performance, and translation of its works.
Rights of related parties
This category of rights is vested in performing artists, producers of sound recordings, broadcasting organizations. Why are they given protection under copyright? Because through copyrighted works of the creator, they also invest their time and money to create something. So, in exchange for this, their interests in the works should be protected.
These are some of the rights which are covered under intellectual property rights. Is it worth pondering why these rights are required for outer space activities? What is the need for them? Are there any Laws that are currently governing this field? What are the issues related to IPR and outer space applicability?
Need for IPR in the Outer Space
Developing advanced technology to research and explore space requires a huge amount of time and investment in research & development (R&D). This field is full of various intellectual creations, whose fruits would be borne by the entire humanity. To further the advancement, various non-governmental private companies are taking an active interest in this field, this is a shift from the state-owned entities indulging in this field. The various activities conducted by these entities include but are not limited to remote sensing from space, direct broadcasting and research and manufacturing in microgravity environments. Due to the investment involved in conducting such activities, and the heavy privatization of such entities, the entities worry about their property all the time, both tangible and intangible form.
Since developing these technologies require a lot of investment, collaborations can be seen between private and state-owned companies. Their contract specifically ensures that the technology-shared would be recovered back in the future without any misappropriation and misuse. This protection encourages companies to participate further in the development of space technology.
With the advent of globalization and development in communications technology, various companies desire to work together in the outer space area by collaborating with sharing their information and technology with each other. In such a situation, when a dispute arises regarding the protection of their property, there is no international regime of laws and institutions to resolve such disputes. Moreover, the contractual obligations are on the parties and not to third party players. Therefore, to resolve the issues concerning ownership and rights of use, distribution, confidentiality, etc at a global level, an international regulatory regime is the need of the hour.
Another reason for the need for IPR for outer space is to encourage innovators, researchers, and scientists to provide for future business opportunities in advancement in space technology. If protection is provided to their intellectual property through appropriate IP laws, it would encourage more people to work in the area. For example, providing protection to research conducted to make a blueprint of a sustainable habitable environment on Mars.
Summarising all these arguments, the following are the reasons which emphasize on the need to have an International IPR regime to deal with outer-space issues:
- The huge amount of time and money invested to conduct R&D in advanced space technology without any protection provided to the intellectual property discourages state and non-state entities to indulge in such activities.
- The collaborations between state and non-state entities to develop advanced space technology or conduct research in the field require the sharing of available information and technology between the parties. In the absence of regulatory laws, it would be difficult to provide appropriate protection to information and technology exchanged from a party or a third party.
- In the age of globalization, where the entire globe is interconnected with technology, various entities are collaborating at an international level to develop outer-space technology or conduct research. The absence of an international regulatory regime will weaken the protection of the information and technology of the participants and national laws will be inefficient to resolve the disputes at an international level.
- When there are exhaustively defined laws there is confidence amongst researchers, scientists, and entities that their intellectual property developed will get protected, they are encouraged to invest more to further the development in this field.
Laws governing IPR in the Outer Space
Till now, we have discussed the various forms of IPR presently providing protection to intellectual property and why there is a need to extend the ambit of IPR laws to cover the disputes regarding outer-space. It should be worth pondering: are there any existing laws that cover the area of outer space? Unfortunately, there is not a single law or convention which is specifically implemented to protect outer-space technology and research as intellectual property. Although, the provisions of the existing IPR laws can be slightly interpreted to accommodate the protection for outer-space intellectual property to a certain extent. The following are such international principles concerning intellectual property:
Paris Convention for the Protection of Industrial Property
This Convention does not expressly consider the question of inventions in outer space and is the basic international treaty in the field of industrial property. This treaty lays down the national rule and protocols related to protection and enforcement of intellectual property rights at the national level, which all the Member States must follow.
The system of patents is also not universalized if a Member State grants a patent to an invention, it does impose an obligation to the other Member States to grant a patent to that invention too. Similarly, if patent protection in a Member State for an invention has been refused or has lost its effect cannot become the ground for the other Member State to refuse, revoke or terminate patent protection for an invention.
Article 5ter of the Convention is somewhat relevant to outer-space activities. Certain limitations are placed when the full use of exclusive rights would cause too much prejudice to the public interest in maintaining freedom of transport. This provides that if ships, aircraft, or land vehicles temporarily visit foreign countries, there is no requirement to obtain licenses from the owners on the patents in force. Therefore, the parts required to build an aircraft will be exempted to take licenses if they enter foreign lands temporarily or accidentally.
The Berne Convention
The Berne Convention for the Protection of Literary and Artistic Works is another basic treaty in the field of copyright and related rights. This Convention also does not specifically talk about rights related to outer-space activities. This convention contains the general principles regarding national treatment and the principle of automatic protection, i.e., there is no requirement for any formality to get copyright protection.
WIPO Copyright Treaty (WCT)
This treaty, apart from the other things, provides protection to computer programs (whatever is their mode or form of expression), the compilation of data or other materials (databases) in any form, which because of their arrangement or selection of data forms an intellectual creation. The treaty also protects the communication transmissions made to and from a spacecraft.
The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) also does not specifically address the question of outer space. This treaty provides and mandates that if any member grants advantage, favor, privilege, or immunity to the national of any country, the other country shall also give such benefits unconditionally and immediately.
This agreement also provides that patent rights must be available and enjoyed without any discrimination as to the place of invention. This can be used for the inventions created in outer-space, whereby patents must be granted and enforced in a territory in the same way it would be granted in any other territory.
It cannot be emphasized more to develop an international regime regulating IP laws in the outer-space. The regime needs to address the issues regarding the applicability of national IP laws to outer-space, the enforceability of rights, dispute resolution when there arises a dispute between the parties launching a space object or conducting research, harmonization IP laws with other international obligations and morality and ownership & entitlement. These issues will surely be resolved in the coming time when more and more parties take notice of this developing field.
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