We live in an era where all the activities which can be done on earth can be predicted to be done in outer space as well. With the technological advancements and rapid developments in outer space activities, the days of colossal success are not far from being tenet. Decades back, when outer space was first explored, it remained under the use and exploitation of the states. Hitherto, the scenario has canalised into the proliferation of commercialization and privatisation plausibly. With this change, the need of Intellectual Property Rights in outer space as necessity. This Article first introduces the terms and the need for the regulation of Intellectual Property rights in outer space clubbed with the International space laws followed by treaties and conventions.
- 1 Introduction
- 2 Outer Space and Space laws
- 3 Intellectual property rights
- 4 Probable Protections that can be granted
- 5 Need for Intellectual Property Rights in Outer space
- 6 Loopholes which may arise
- 7 Development of National/Regional Intellectual Property Law in Outer Space in outer property law
- 8 Conclusion
Quoting Gene Carnen “Curiosity is the essence of our existence”, it can be safely said that the exploration of space is the curiosity of mankind. Curiosity in turn has forced men to delve deep into the outer space activities. The discovery of outer space was possible only because of the great minds behind the research and development. Initially it begin only with the state owned agencies like NASA but sooner the private players such as Spacex started investing and the era of commercialization in the space activities embarked on.
Nonetheless, the engagement of non-governmental agencies is not in absence of ascertaining any legal liability; Article VI of the Outer Space Treaty, 1967, provides that States shall be responsible internationally for national activities in outer space carried out by governmental agencies or by non-governmental agencies and that the State shall authorize the activities of the non-governmental agencies. To protect the interest and innovation of the private entities the need for IPR is the emergency of the hour.
Considering the radical shift from government to non-governmental players in the developments of Outer Space operations, it has become very apparent that an international legal system must be formed to resolve IP concerns arising from Outer Space activities and also to promote and encourage the involvement of non-state actors.
Outer Space and Space laws
Outer space, or simply space, is the expanse that exists beyond Earth and between celestial bodies. Now, with the reach and access to the outer space comes handy the space laws. These are body of rules governing the use of outer space. The Space laws are even of more significance as the outer space is Res-communis i.e. The Community property, also according to Article 1 of the Outer space treaty it is marked as “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”.
Primordial, the laws were non-binding and were characterised as soft laws but with rapid commercialization in the space activities the laws were hard and binding and so is the present case. However, it is important to mention that there are a numbers of treaties and agreements vis-à-vis conventions on space law enacted till now and International Law of Outer Space is based on these treaties. These are Outer Space Treaty, 1967, Rescue Agreement, 1968, Liability Convention, 1972, Registration Convention, 1975 and Moon Agreement, 1979.
Intellectual property rights
Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
This regulation is must so as to put authoritative direction to bring and maintain order in society, whether land, sea or outer space; protection of order is important.
Globally, intellectual property is acknowledged by a system of treaties and international organisations. The World Intellectual Property Organization (WIPO), a United Nations Special Agency, is by far the most important organisation. Other Treaties such as Paris Convention for the protection of industrial property, 1883, Berne Convention for the protection of literary and artistic work, 1886, WIPO copyright treaty (WCT), 1996 also plays major role in this field.
Probable Protections that can be granted
Industrial Property – meant for functional commercial innovations
- Patents: Patents are the exclusive rights given to the invention which is out for the first time. They are granted by the government within their territorial limits. Problems arise when the patents are needed for non-territorial limits, such as space. This problem is however overshadowed by Article VIII of the Outer Space treaty which specifies that the State (party to the Treaty), on whose registry an object launched into outer space is carried, shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.
- Trademark: According to WIPO, “A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights. However, yet no provision has been made which grants exclusive rights of trademarks to the invention being sent in the outer space. But no sooner than later, the need of trademark would be seen. For instance, Virgin Galactic is attempting to engage in outer space commercial trade and, as a result, anyone willing to exploit the trade will have to pursue trademark protection.
- Trade Secrets: Trade secrets are intellectual property(IP) rights on confidential information which may be sold or licensed. Entities which are capable of enriching such data can resort to protection, provided that the information is of such relevance as to give economic advantage over other.
Literary and Artistic – meant for cultural creations
- Copyright: Copyright protection extends to literary and artistic works like novels, poems, plays, newspapers, films, musical compositions, paintings, drawings, films, etc. The need for copyright is highly seen in the outer space activities, from satellites broadcasting data to other telecommunications secrets, the protection is of utmost significance. There have been concerns regarding the same from a long time and though there are articles 1Article 22 of the International Telecommunications Convention and Article 17 of the Radio Regulations of the International Telecommunications Union maintaining to keep certain telecommunications secret, their relevance to the interception of satellite signals is uncertain.
Need for Intellectual Property Rights in Outer space
Intellectual Property Rights in Space basically means that the State, beyond its standard territorial limits, is willing and able to give protection to creations in space.
In July 1999, in tandem with the Third United Nations Conference on the Exploration and Peaceful Use of Outer Space (UNISPACE III), the Workshop on Intellectual Property Rights in Space was held, which was a significant intergovernmental conference to establish a framework for the productive use of outer space in the 21st century. The suggestions said 2WIPO on Intellectual Property and Space Activities; 2004:
(a) More attention should be paid to the protection of commercialization and privatization, many non-governmental agencies are investing their fortune and are getting engaged in activities which include but are not limited to remote sensing from space, direct broadcasting and research and manufacturing in microgravity environments. Due to such prodigious and pre-mediated investments and brains the need for protecting both tangible and intangible property arises.
The protection and enforcement of intellectual property rights should, however, be taken into account in conjunction with the international legal principles developed by the United Nations in the form of treaties and declarations, such as those relating to the principle of non-appropriation of outer space, as well as other relevant international conventions; (b) In order to improve international collaboration and cooperation at the level of both the state and the private sector, the possibility of harmonizing international standards on intellectual property and laws pertaining to intellectual property rights in outer space should be further pursued.
In particular, it is possible to discuss and explain the possible need for regulations or principles addressing topics such as the following: the applicability of national laws in outer space; the possession and usage of intellectual property rights established in space activities; and the regulations on contracts and licenses; (c) Reasonable protection of intellectual property rights concerning space-related technologies should be provided by all States, thus fostering and encouraging the free flow of basic science knowledge; (d) Educational activities should be promoted pertaining to intellectual property rights in relation to outer space activities.
Further, there are no international regime laws to look forward to in cases where disputes arise regarding the ownership of the work. Such disputes arises mainly when private and state owned companies collaborate or independent private companies comes together to invest their resource and time in research and development in outer space.
The need for IP laws seems of great significance to motivate and uplift the confidence of scientists/researchers/scholars to work in the field and achieve greater heights to open gates for more business opportunities. If their intellectual property is protected, they would be more engaging and encouraged. Also, Protection gives the owner of the creation the right to seek legal redress in the event of commercial misuse of the creation in space.
The value of ensuring a legal regime that protects Intellectual Property rights in outer space activities can, therefore, not be downplayed. In the absence of such a regime, successful international cooperation between states and other organizations engaged in space exploration is reduced. IPR security is intended to enhance the imagination of the human mind for the benefit of the public in a rather manner that it will allow the maker and the investor to become much more engaged in space exploration.
Loopholes which may arise
The fact that intellectual property is important for exploring space and further contributing to research and development is not at all questionable. Certain disputes, however, continue. Regulation of any intellectual property could conflict with, and create obstacles to, the concept of free and equal access to knowledge, information and resources extracted from space activities.
Developed countries rich in resources will protect their inventions whilst the developing nations will stand on the disadvantage. Such loopholes will not allow developing countries to carry out research and development with ease. A functioning extra-terrestrial legal infrastructure for the development and enforcement of IP is fundamental for a healthy and productive scientific environment in space.
Development of National/Regional Intellectual Property Law in Outer Space in outer property law
The United States of America is the only nation to have defined an explicit clause that connects the three main elements: inventions, jurisdiction and territories. In other countries, there is no explicit statutory provision of this kind, except that, by virtue of the ratification of the 1988 Intergovernmental Agreement, German intellectual property law is applicable to the ESA-registered elements.
India, like many other nations, has not yet passes any legislation in regard to the national space legislation. This is a gap in the system as having legislation is the need of the hour. However, India is signatory to all the treaties and international agreements which form a framework either to IPR or Space laws. India though a developing nation, unlike others, has achieved greater heights in the research and development in the outer space, thus having a law becomes more crucial for future endeavors.
Also, with the commercialization and privatization, a need for having a law is just mandatory as to safeguard the interest of the private entities along with clarifying the norms and rules relating to both public laws and private law aspects of space activities, as demonstrated by the experience of developed countries like USA. Therefore, India has to have a suitable space law which harmonizes with the IPR needs.
Creating and incentivizing a supportive environment for research and development is vital to space exploration. 3Discussing the extent of the ties between governmental space endeavours and national economy in the United States In the context of the future development of outer space operations, technological inputs, as well as financial contributions from the private sector, can be expected to become increasingly relevant. Further developments in a broad range of technologies would create more possibilities for the private sector to develop innovative space applications.
While it is possible to envisage a range of public policy instruments to encourage private sector involvement, the protection of intellectual property would play an important role in the creation of viable space business models involving public/private alliances. Although the future is difficult to foresee, the security of intellectual property is very likely to be one of the main factors in establishing an operational and regulatory atmosphere that facilitates the further growth of the space industry. Therefore, looking at how critical the Intellectual Property rights in outer space can be, developing laws based on a balanced approach is the emergency of the hour.