This article is written by Daisy Jain, pursuing B.COM.LLB (Hons) from the Institute of Law, Nirma University. This is an exhaustive article on outer space patenting, and the readiness of the world with regards to it. 

Introduction 

The commercialization of outer space is progressing into a new stage in its development. It is the strong territorial framework to intellectual property rights that is inconsistent with the legislation governing space operations. The purpose of this article is to examine the topic of patent protection in outer space while also providing a feasible framework for the protection of what is known as “outer space patenting”. It is anticipated that such an international framework will stimulate the advancement of space operations and will, in particular, address the demand for patent protection by governments and private enterprises. Space activities, like all human practices, are subject to international and national laws and regulations. 

Intellectual property rights (IPRs) are constantly raising a variety of major legal concerns in relation to space activities, including questions of ownership of intellectual property and violation of IPRs, among other things. The significance of intellectual property rights (particularly industrial property rights) pertaining to space activities is growing rapidly as the private enterprise becomes increasingly acknowledged as a component in further space growth and as space applications become more and more embedded into everyday life on Earth. Generally speaking, industrial property (the patent system) is needed for the issue of a patent since it serves to foster the development of novel ideas for the welfare of the majority at large. Since patent systems were created as a means of striking a balance between the interests of inventors and the interests of the public at large.

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Intellectual property and its role in the context of space activities

WIPO is an intergovernmental organization that has been a member of the United Nations system of organizations since 1974. It is one of the 16 specialized agencies that make up the system. A major responsibility of the World Intellectual Property Organization (WIPO) is to promote intellectual property security across the world through coexistence among countries and, where suitable, cooperation with other international organizations, as well as to administer various treaties related to intellectual property. As of now, 193 countries are members of the World Intellectual Property Organization (WIPO). 

Notions and roles of intellectual property 

According to Article 2(viii) of the Convention Establishing the World Intellectual Property Organization, which was signed on 14th July 1967; “intellectual property” should encompass provisions related to:

  • Literary, artistic, and scientific works;
  • Performances of performing artists, broadcasts, and phonograms;
  • Inventive breakthroughs in every aspect of human achievement;
  • Significant breakthroughs in scientific research;
  • Designs for industrial use;
  • Trademarks, service marks, and other commercial names and designations are all protected.
  • Additionally, unfair competition security is provided.
  • All other rights originating from intellectual work in the domains of industry, science, literature, and the arts.

Patents

Inventions are protected by patents, which are special rights provided to the inventors of those inventions. In the case of a patent, the owner has unique rights to restrict third parties who do not have the owner’s authorization from carrying out the activities of creating the patented invention, using it, presenting it for sale, selling it, or importing it for these reasons. Before obtaining a patent for their idea, each patent applicant will need to take into consideration two major factors. These are:

  1. The jurisdiction(s) in which the technology is used before its deployment into space; and 
  2. The jurisdiction(s) and “control” point(s) of the technology that is associated with them.

Patents given by national governments are fundamentally territorial, and as a result, granting patents in a zone where there are currently no territorial boundaries, such as space, becomes problematic. It was addressed by Article VIII of the Outer Space Treaty, which states that the state (party to the Treaty) whose registry an item entered into outer space is passed shall preserve jurisdiction and influence over such item and any personnel thereof while in outer space or on a celestial body. The control point for the technology is also retained by the government of the country that registered it. Depending on the space-bound technology, the patentee must take into account either the first or the second element, or a combination of the two, to obtain protection for his or her invention.

Trademarks

Trademarks are distinguishing signs that distinguish particular goods or services as having been created or provided by a particular individual or company. As of right now, there is no mechanism for the issuance of trademark protection to any inventions that are sent into space. The image and branding of the goods and services in question are what distinguishes it from a patent in terms of its application. For example, firms such as SpaceX, XCOR, and Orbital Sciences Corporation, which are involved in the production and commercial upstarts, would seek to preserve their invention and prestige in space. Virgin Galactic is trying to engage in commercial trade in outer space, and as a result, those wishing to profit from this endeavour will be required to obtain trademark protection.

Copyrights

Copyrights can be used to protect the communication and receipt of information from satellites. Since the 1960s, safeguarding intellectual works broadcast via satellite from illicit surveillance and use has been a major international issue, particularly in the developing world. There is a serious insufficiency about the same. Even though Article 17 of the Radio Regulations of the International Telecommunications Union and Article 22 of the International Telecommunications Convention entail member states to keep specific telecommunications secrets, the significance of these provisions to the interference of satellite signals is debatable. Copyright difficulties can arise as a result of direct broadcast satellite technology, which is becoming more prevalent. The Brussels Satellite Convention was drafted to address this deficit to a greater extent.

Because space has generally been regarded as a common heritage shared by all of humanity, and because of the requirements laid out in the Outer Space Treaty (OST), which stipulates the exchange of perks obtained from space, personal liberty in space is still a long way off from being asserted today. Only on an object that has been launched into space may a person or a country claim exclusive ownership or control. As previously noted, this element is governed by Article VIII of the Outer Space Treaty, which states that the launching state is responsible for registering the object and, as a result, will have authority over the item. 

Advancements of intellectual property in the area of space activities

It has only been in recent years that intellectual property protection in linkage with outer space activities has received greater focus, even though space technology has always been one of the most innovative technical areas and that outer space activities are, after all, the fruit of intellectual creations. One of the causes for this movement is that space operations are rapidly changing away from state-owned activities and towards the private and commercial sectors. Remote sensing from space, direct transmission, as well as research and production in microgravity environments, are some of the operations that are taking place. Not only is there an increase in new commercial sector involvement, but there is also an increase in the privatization of entities, as in the cases of Inmarsat and Intelsat. In general, such non-governmental organizations are more cognizant of their “property”, both in physical and intellectual forms. Furthermore, due to the large amount of financial and technical resources needed to complete space programs, cooperation with the private sector is not uncommon among many of the state-owned space agencies operating today. Licensing contracts are made between governmental space agencies and private corporations. Such private finance must be even though based on the expectation that the R&D investment would be repaid at some point in the future. Consequently, the acquisition and preservation of intellectual property rights would have a favourable impact on the engagement of the private sector in the growth of outer space operations and on the continued advancement of science and technology and space technology in general.

Another factor contributing to the rise of intellectual property concerns in recent years is the globalization of space operations. As is the scenario with the International Space Station (ISS), an increasing number of space activities are being carried out under international cooperation schemes, which involve a diverse range of players representing a variety of constituencies from distinct nations. As a result, there is a pressing need for an international legal framework that is straightforward, standard, and dependable. Even though national intellectual property laws are generally well-harmonized, distinct national regulations still apply different principles in varying situations. When a disagreement emerges, each country’s legislation governs the question of whether or not the matter falls within international jurisdiction. As a result of the absence of a trustable international legal regime, parties to international cooperation agreements are required to negotiate intellectual property clauses, which may address issues such as ownership, rights of use, rights of distribution, and licensing of data, data capable of legal recourse, and confidentiality. While a commercial arrangement of this nature is binding between the parties involved, it does not obligate other parties in any way.

Another factor could be that, as a result of advancements in space technology, new business opportunities are becoming available. For example, although it is currently a pipe dream for the wider populace, advances in space transportation technology are paving the way for the establishment of space tourism in the near future. Till now, when addressing intellectual property issues concerning space activities, the main worries have been patent protection for inventions formed or used in outer space, or copyright safety for databases containing data obtained through space activities. However, this is changing. Depending on whether or not space tourism becomes an actuality, the security of trademarks and industrial designs in outer space may also become a significant concern.

It is impossible to overstate the significance of having a legal framework that successfully safeguards intellectual property in space. Lack of legal stability will impact the growth of space research and international cooperation. As a result of the significant investments required for space operations, a legislative regime that ensures a fair and equitable environment is required to promote the involvement of the private sector. Restricted exclusive rights provided by intellectual property protection would provide competitive advantages to right holders, either through the conclusion of a licensing agreement or by the exclusion of competitors from using a particular technological innovation. Patents and intellectual property rights acquired by the corporation may help to boost the company’s overall reputation in the marketplace. A company’s technical competency, for example, may be demonstrated by the acquisition of patents. Additionally, the possibility of licensing intellectual property provides the opportunity to bargain a cross-license with other parties, which is especially advantageous when a particular space technology in question is an integration of numerous high-technologies. In addition, in some countries, legal frameworks for establishing and maintaining security rights in intellectual property are in existence.

Definition and legal status of an outer space

At present time, there is no legally binding definition or demarcation of outer space that has been agreed upon. Accordingly, the following would be an appropriate definition: The term “outer space” refers to the entire area of space encircling the Earth. As per the rules of celestial mechanics, it is the only place where objects can move without the use of artificial propulsion devices. It persists without being hindered by the frictional impedance of the earth’s atmosphere, which would otherwise hinder it from existing. It spreads upwards from an elevation of roughly 100 kilometres above the surface of the earth. Using the definition of outer space provided above, satellites, both natural and manufactured, can move around the earth without the use of an active propulsion system. Whenever the orbital trajectory attains altitudes close to 100 km, it is almost certain that the braking force will still be powerful enough to pull the trajectory down to a level below 100 km. As the frictional resistance diminishes progressively with rising altitude, this will occur in a relatively short period. Even at a distance of about 1000 kilometres, this friction is still there, but in a very feeble form. It will also take approximately 1,000 years for an object at this altitude to fall to the earth’s surface from its current location at the top of the world.

In 1957, at the advent of the Space Age, talks began in the state community, as well as within the United Nations, specifically on the legal position of this new subject. In a newly ‘found’ area, several legal ideas from traditional public international law could be used in a novel way. At the end of the day, the method chosen by the state community was significantly different from but equivalent to, the regime established for the high seas, where no state sovereignty is recognized. In the United Nations Charter, outer space has been proclaimed a res communis, which means that it is not susceptible to the sovereignty of any state and that governments are obligated to abstain from taking any actions that could jeopardize the use of outer space by other states.

International principles concerning outer space

The five space treaties signed under the framework of the United Nations (UN) constitute the well-known body of international space law. They are as follows:

  • Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies of 27th January 1967 (Outer Space Treaty);
  • Agreement on the rescue of astronauts, the return of astronauts, and the return of objects launched into outer space of 22nd April 1968 (Rescue Agreement);
  • Convention on international liability for damage caused by space objects of 29th March 1972 (Liability Convention);
  • Convention on registration of objects launched into outer space of 14th January 1975 (Registration Convention);
  • On 18th December 1979, an agreement was regulated for the activities of states on the moon and other celestial bodies (Moon Treaty).

All of these issues derive from the fact that research and development, as well as the deployment of space objects and the associated operational costs, necessitate a substantial investment of resources on a scale that could only be accomplished by governments or government-supported enterprises. This can be used to explain the creation of legal rules that have been agreed upon and sanctioned at the international level. The first clear benefit of UN Bodies such as the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) engagement was the completion of a fundamental agreement on outer space in 1967, which was based on UN Resolutions No. 1348 of December 1958, No. 1472 of December 1959, No. 1721 of December 1961, and the Test Ban Treaty of 1963. This agreement was known as the Outer Space Treaty and was signed in 1967. The Outer Space Treaty establishes the fundamental principles for the exploration and utilization of outer space, and it was signed in 1967. Thus, it acts as a “Magna Carta” or “Constitution” for all actions that take place in outer space, according to some. A handful of its ideas were further developed in more explicit provisions of four additional space treaties.

Countries that have IPR laws compatible with space law

Only the United States legislation and the NASA Act of 1958 contain clear legal frameworks regarding the applicability of domestic intellectual property law to space activities. According to the US Space Bill, patent law applies to objects in outer space, however, the NASA Act deems a space item to be nothing more than a “vehicle.” The latter has effectively constructed a balanced intellectual property strategy that has proven to be exceptionally effective in protecting patent interests while fostering industrial engagement in commercial space activities.

Intellectual property standards have been drafted by the European Space Agency as well as by international organizations, including contract requirements, regulations in the implementing rules of optional programs, and terms incorporated in international agreements. Every year, the European Space Agency (ESA) files approximately 20 patent applications relating to inventions made by its employees. It has also preferred to safeguard the titles of its programs through the use of registered trademarks for those programs that are created and devised to be commercialized by a company specifically established for that reason, such as those formed under the Arianne Program. One of the most significant roles played by the European Union in satellite broadcasting is in fostering an environment in which trans-border broadcasts are not inhibited by legal uncertainty.

India, although being a signatory to all international space treaties, is not unique from the vast majority of other nations when it comes to creating particular space legislation of its own, which is to say that it does not have any. With the rising diversification of Indian space activities, there is an urgent need for the formulation of coherent and balanced space legislation.

Space legislation in India

In India, as in other nations, the use of intellectual property rules in space-related activity is still in its infancy. Indian participation in international treaties such as the Outer Space Treaty of 1967, the Moon Treaty 1979, the Liability Convention 1972, the Rescue Agreement of 1968, the Registration Convention 1975, and others do sometimes not result in any significant changes in the country’s space policy, and there is no particular national space legislation in place. An effective national space policy is required to promote the entire expansion of space operations in India, and the government intends to do so by introducing the Space Activities Bill, 2017, which has been presented to the Prime Minister for consideration. There is a proposal for a bill to promote and regulate the space activities of India, as well as encouraging private commercial organizations to participate in space operations in India, with direction and authorization from the government provided by the department of space. Aspects of the proposed legislation dealing with intellectual property rights produced in the course of any space-related activities are covered in Section 25 of the proposed legislation. 

However, the provision has a flaw in that it recommends that any intellectual property rights produced onboard a spacecraft be assumed to be the property of the United States government, which is unconstitutional. In fact, if Google were to launch a satellite from India, would it not be the sole owner of the images captured by the satellite? However, despite the government’s efforts to incorporate private businesses in space activities, the bill does not specifically tackle or defend the rights of private entities. In addition, some crucial provisions like orbital patents and flags of ease are not addressed in the bill.

The government’s declaration that private players will be allowed to participate in space operations, as well as the proposed Space Activities Bill 2017, demonstrate the government’s commitment and deliberate agenda in terms of protecting intellectual property in space. There are other complexities and irregularities to be handled, but the government’s notice and incorporation of a provision in the legislation to deal with them show its readiness to do so – and that is an important first step.

Need of reconciliation of IPR and space law

There is no doubt that intellectual property is crucial for space exploration as well as for furthering research and development in the field of science. There are still some issues that need to be addressed. Intellectual property protection may be in contradiction with the concept of fair and transparent access to knowledge, data, and materials obtained from space activities.

Nevertheless, such harmonization is insufficient for expanding such protections to activities and patents connected to space exploration and exploration technologies in general. To ensure that even poor nations may gain from their innovations rather than being eclipsed by developed countries, a unified legislative regime controlling intellectual property rules in space must be established. As far as intellectual property rights are concerned, there is a great deal of room for expansion into outer space in terms of new aspects, such as the application of territorially based national laws to outer space for the regulation of rights, privileges, and ownership in the case of joint activities, and adherence with international commitments. Additionally, to resolve conflicts arising out of intellectual property rights in outer space, it is necessary to establish a uniform enforcement system, such as that of international arbitration.

Even if we were to only discover the possibilities of space, it could take us years. It has the potential to deliver resources that cannot be valued at this point. Adequate and suitable means for exploring space can only be developed with the technological and financial cooperation of the commercial sector and government bodies. The fact that any firm has the unique right to its inventions, to the exclusion of others, provides an incentive for it to innovate and develop superior technology. Intellectual property rights are the sole means by which such an exclusive right can be awarded. The harmonization of intellectual property rights laws with space laws is necessary for the interest of space exploration as a whole.

Conclusion 

Every mooted solution has a flaw, and none of them is satisfactory at this stage in terms of mitigating the challenges associated with the patentability of space inventions at this time. It would be good for the world’s main space-faring nations to establish a treaty prohibiting corporations or inventors from profiting from the use of technology that infringes on the patents of any of the signatory countries’ governments. Due to which innovators and applicant companies will be compelled to adhere to the system that has been established to profit from their discoveries. If the corporations do not adhere to the aforementioned rules, they will be unable to generate a profit from the object. The companies that engage in the aforesaid actions do so to gain financial gain. By making use of the differences between the patent laws of various nations, several advantages can be attained. If none of the countries recognizes any invention that violates the patent laws of any other participating nations, these calculative beneficiaries would be forced to cease their practice soon. However, before any clear and successful solution can be implemented, it is important for the states to first modify their intellectual property laws to ensure that space-related ideas are patentable. Despite this, some countries, such as the United States and Canada, have modified their national patent laws in recent years.

It is recommended that the dispute between intellectual property laws and the space law regime be settled through the development of an integrated structure, which could be evolved by the international IPR and space law community under the umbrella of UN Bodies such as the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) and the World Intellectual Property Organization (WIPO). Furthermore, it is strongly proposed that the standardized framework takes into consideration the objectives of developing countries as well as the promotion of moral and ethical use of outer space for the sake of the complete human race as part of its overall design.

References

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