In the past few decades, outer space activities have brought a revolutionary change in day-to-day life. From weather monitoring, global positioning system (GPS), communication and broadcasting to exploring celestial bodies and space tourism, countries have come up with a wide range of services that are now essential for the economy.
Apart from government agencies, an increasing number of private players are entering the space economy. However, conflicts between IPR and outer space laws are slowly on the rise. The reason is, outer space activities involve advanced technological innovations.
Innovators argue that they are entitled to returns on their investment by way of commercially exploitable intellectual property rights in respect of their inventions. To encourage individuals to continue making progress in this field, a proper framework for IPR for outer space activities is essential.
Intellectual Property Rights and Outer Space Laws
To understand the reasons behind the conflict between IPR laws and the international principles governing outer space activities, one first needs a clear insight into the international laws regarding space explorations.
Articles 1 and 2 of the Outer Space Treaty 1967
The Outer Space Treaty‘s Articles 1 and 2 contain rules on the exploration and use of outer space. It also includes the moon and other celestial bodies and states that such entities be used for the benefit and interests of all countries. Examples in this regard can be the International Space Station and the Artemis Program.
This law states that outer space shall be the province of all mankind, regardless of the degree of scientific and economic development by any nation. Additionally, they shall not be subject to national appropriation, by claim of use, occupation, sovereignty or any other means.
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
This is a multilateral treaty governing the exploration and use of outer space for peaceful endeavours as adopted by the United Nations General Assembly. According to the treaty, outer space belongs to all mankind and shall be used for the benefit and interests of all countries. Their levels of scientific, technological, economic and social development should not be a determining factor. In this regard, the signatories agreed that special attention should be given to protecting the interest of developing nations.
States have complete freedom on determining every aspect of their participation in international space explorations and the use of outer space. However, it must be on an equitable and mutually acceptable basis. Furthermore, in such cooperative activities, contractual terms must be fair and reasonable. They should comply with the legitimate rights and interests of all parties involved, for instance, their intellectual property rights.
Nowadays, the participation of private sector enterprises is rapidly increasing in space exploration activities. However, the principles of international cooperation and collective development are still valid.
Thus, many legal experts have raised questions on whether the protection and enforcement of IP rights may conflict with the Outer Space Treaty’s fundamental principles. Some scholars, on the one hand, state that compromising the intellectual property rights of commercial enterprises through compulsory licensing will adversely impact their initiative towards developing innovations.
Alternatively, others argue that technologies like telecommunications, remote sensing, etc., have become indispensable for the socio-economic progress of developing nations. So, stringent patent laws can make such technology unobtainable for such states. Additionally, it may prevent them from gaining access to the technology to reach outer space.
World Commission on the Ethics of Scientific Knowledge and Technology (COMEST)
COMEST is an advisory board set up by UNESCO in 1998 consisting of 18 leading scholars from various disciplines and regions. In its 169th session, the committee decided to draft an international instrument covering the ethical aspects of outer space activities. It considered the following recommendations:
- Taking all appropriate measures in order to provide researchers with free access to data for promoting scientific progress
- Facilitating developing countries’ access to outer space scientific data
- Defining procedures to permit sharing of resulting benefits, taking into account the legitimate interests of such nations in the most equitable and balanced manner
General Assembly’s Convention on Registration of Objects Launched into Outer Space
As per the UN General Assembly’s registration convention, when a state launches a space object into Earth’s orbit or beyond, the launching nation needs to register it and maintain an appropriate registry of the same.
Additionally, they have to inform the United Nations Secretary-General of the creation of such a registry. Now, when two or more nations launch a space object, they have to jointly determine which country shall register it.
They also have to keep in mind Article VIII of the Outer Space Treaty. Furthermore, they should not have any prejudice among themselves regarding their agreements on jurisdiction and control of the space object and its personnel.
Third United Nations Conference on Territoriality Conflict in IP Laws
In July 1999, the United Nations held its third conference, in which they discussed the applicability of national/regional law IP laws in outer space. Now, the acquisition and applicability of such laws tend to differ among states. Hence, the protection of intellectual property is subject to the country’s national laws.
The treaties under WIPO and the TRIPS Agreement have created a certain level of harmonisation in IP laws among its member nations. However, there still exists a considerable difference between intellectual property laws across states.
The Outer Space Treaty states that outer space and celestial bodies are the province of all mankind. However, it makes a difference between “outer space as such” and “an object launched into outer space”. Additionally, Article 8 of the Outer Space Treaty states that the nation on whose registry such an object is carried, has the right to retain jurisdiction and control over it as well as any involved personnel.
Also, as per the General Assembly’s Registration Convention, the launching state of a space object or the nation from whose territory it has been launched needs to register it in an appropriate registry. In this case, the registering country’s IP laws will apply to such a space object.
However, scholars question the extension of these laws to the objects that have been launched into space, for their launching states. Additionally, there should be a distinction between activities in outer space and ventures undertaken for such pursuits within nations.
In this regard, only the United States has explicit provisions establishing a link between inventions, territory and jurisdictions, relating to outer space activities.
Remote Sensing Databases and IPR
There are certain databases which are not creative but are based on a certain level of effort or investment. They are called non-creative databases or ‘sweat of the brow’ databases. There are still no specific criteria to determine the IP rights eligibility of such databases.
Furthermore, the World Intellectual Property Organization (WIPO) member states have been discussing the possible introduction of laws, for the international protection of non-original databases which do not qualify for copyright law protection.
Some countries protect non-creative databases via a traditional intellectual property legal framework. However, it is only applicable to those databases which have been created through sufficient judgement, skill, investment or labour.
Whereas, others have created a sui generis legislative framework to provide IP protection for non-creative databases which may not strictly fall under the scope of copyright protection.
Remote sensing and geospatial data fall under non-creative databases. Thus, to prevent their unauthorised copying and utilisation, introducing an international legal IP protection framework is of utmost importance.
Position of IP Space Law in India – Draft Space Activity Bill 2017 under Consideration
In November 2017, the Indian Government’s Department of Space introduced the Draft Space Activity Bill for comments by stakeholders. The authorities intended to encourage the growth of private commercial space activities in the nation.
Since India is a signing member of the Outer Space Treaty, it is under obligation to take responsibility for all national space activities, whether it is undertaken by governmental or private entities. However, the country does not have a comprehensive legal framework for implementing international treaties like the Satellite Communications Policy, 2000 and the Revised Remote Sensing Data Policy, 2011, etc.
Thus, the need for national legislation to regulate and support the growing space activities was needed. But, the Draft Space Activity Bill has several constraints, due to which it is still under consideration.
Some of them are as follows:
● The Draft Bill adopts an overly regulatory approach via an extensive system of licensing. This includes giving binding directions, subjecting the licensee to a wide array of terms and conditions, inquiring into their affairs, asking them to furnish information, etc.
● Absence of any provision which mandates accountability and transparency on the regulatory authority’s end.
● Clause 26 of the Draft Bill states that no suit, prosecution or other legal proceeding is applicable against the Central Government, in case it does anything in good faith under the Bill or its applicable rules. This negates the possibility of a judicial review, which is a basic feature under the Constitution of India.
● It provides a broad regulatory framework that lacks several essential details.
● Provisions on licensing are tedious and unfriendly when it comes to business interests.
● No clearly worded clause on the liabilities which private enterprises may face while conducting commercial space activities.
● For inventions made in outer space, the inventor does not get any IP rights protection. It solely belongs to the Central Government.
These factors create a huge disinterest for private firms when it comes to entering the commercial space activities sector. Furthermore, the development costs of space technology are very high, while profit margins are comparatively low. Thus, cost-effectiveness is a primary concern among private entities.
Thus, if the Bill does not provide economic stability or if the organisations face high compliance costs, the expansion of India’s space commerce with private participation will be difficult.
There is major scope for improvement in the Draft Space Activity Bill for meeting its intended objective of promoting space activities in India. One of them is by enhancing clarity and precision while drafting the Bill.
Indian authorities can consider taking cues from the commerce-oriented domestic space laws of nations which are already established in the field of outer space activities. By doing so, they can reform cumbersome regulatory procedures and reduce excessive government interference in the activities of private enterprises.
Frequently Asked Questions
1. What is the IPR law in space?
As per the Outer Space Treaty, outer space regions, including the moon and other celestial bodies do not fall under any country’s jurisdiction. They shall only be used for promoting the scientific interests and benefits of all mankind. However, nations have to take responsibility for any outer space objects landed or constructed on celestial bodies. It also includes their involved personnel.
2. What are the issues with patents in outer space?
The current legal framework for patent filings is territorial, that is, they are applicable only within the issuing country’s borders. However, for outer space activities, there are no clear boundaries or jurisdiction. Thus, applying traditional patent laws in outer space is a major challenge.
3. Do patents apply in space?
All patents are based on the traditional legal framework. It makes them effective only within the boundaries of their issuing countries. Now, as per the Outer Space Treaty, no nation can claim sovereignty in outer space or any celestial body. Thus, it is extremely difficult to apply patent laws in this case.
4. Does NASA hold any patents?
Yes, NASA holds approximately 2662 patents worldwide, out of which 1239 are active. They have commercial potential and are available to people through their public licensing program.
5. What is intellectual property in space?
As per the Outer Space Treaty of 1967, no country can claim jurisdiction over outer space and its celestial bodies. However, any space objects they launch can come under intellectual property rights. As, under this act, member countries have sole rights on their launched outer space objects and all involved personnel.
Author: Koushik Banerjee