INTELLECTUAL PROPERTY PROTECTION IN OUTER SPACE ACTIVITIES: AN OVERVIEW By - Urvi Singh

INTELLECTUAL PROPERTY PROTECTION IN OUTER SPACE ACTIVITIES:

AN OVERVIEW

Authored By - Urvi Singh

Space Law and Intellectual Property Rights appear to be two separate areas of law. The former is governed by international law and facilitates the exploration of outer space, whilst the latter is governed by national law and protects creators' or inventors' rights from the exploitation of their creations. The study of both space law and intellectual property rights requires a thorough analysis of UN conventions, treaties, and principles. The role of IP in space activities has grown in importance as a result of the entry of private actors into the market, and it demands prompt attention. Because space exploration entails large investments, the discoveries made by private enterprises must be given proper credit and recognition. Further the dissimilarities between the various national laws of various countries it becomes more difficult to address the IP issues in outer space as there is no unanimity to determine them. With the launch of the space shuttle and further groundwork for space stations in the future, there are more chances for success in private-sector space activities. There are various IP protection challenges related to patents and copyright for the invention of space production that is created by space commercialization operations. In the field of space technology innovation is very frequent and further the protection this innovation the legal framework nationally and internationally is evolving. For instance, the creation of space communication technologies creates various difficulties in copyrights. When the question is raised of protection IP, the United States provides incentives for commercial space participation. The regulation related to IP by NASA can be the starting point in resolving the challenges related to intellectual property rights and further laws can be made about the above.

OBJECTIVE AND SCOPE OF STUDY

The objective of this research paper is to investigate various legal provisions, policies as well as rules that are governing space activities and IP issues which are involved in it. The objective is also to look at the working of the IP in tandem with international principles of Space law and further how IP protection functions in space.

METHODOLOGY

The researcher has used the doctrinal method i.e., reference from the available primary sources like Acts, Rules, and Regulations to study the present questions at hand. The researcher has also taken references from secondary sources like books, articles, and newspaper reports to critically analyze the topic of Intellectual property protection in Outer space activities: an overview.

CHAPTERIZATION

The paper is divided into three parts. The first part of the paper takes up the role of IPR in Outer Space which includes IPR and activities in outer space, IP, and its role in context to space activities, and international conventions that are related to IP and Outer space. The second part explores the Indian perspective on IP and Outer space. The third, and last part of the paper deals with the recent activities and recommendations in international treaties of outer space which includes the need for development in international treaties further including various recent activities relating to IP and Outer space.

INTRODUCTION

The outer space sector is affected by globalization and privatization as various private entities in collaboration with the government are actively participating in achieving new milestones in outer space. These entities provide various services including broadcasting, sensing from space, fabrication, etc. The Indian Research Space Organization is the primary body in the field of outer space in India. Because of the involvement of private entities in space activities, it has become pertinent to develop international treaties on outer space to cater to various aspects such as Intellectual property. One of the reasons why the protection of IP is important in outer space activities is that it will ensure that more private entities will participate in the development of space technologies.

Despite restrictions, various space start-ups have emerged in recent times. Some of these start-ups even manufacture entire satellites which are launched with the help of ISRO or foreign private companies. Outer space operations are distinguished using complex and advanced technology, in which intellectual property protection plays a prominent part. Space exploration was traced back to the launch of Sputnik by the USSR. Along with the space, the quest brings on rights and liabilities which arise out of the activities which take place in space. This brings in the role of Intellectual property law. IP rights are rights that are conferred by the State upon the creator of any innovation to enjoy his innovation. IP rights give economic benefits to encourage innovation, development, and research. The idea behind intellectual property protection in space is that when an invention occurs outside of any nation's territorial limits, it does not preclude the creator from claiming rights to it. The primary issue in interpreting the IP Law and the Space Law broadly is to find a harmonious relationship between the two, as the former grants monopoly to the inventor while the latter declares Space to be the "domain of all mankind." Various institutes and companies are investing their time and money in outer space operations, such as building advanced space technology or conducting research, as a result of the rapid advancement of science and technology and mankind's desire to explore beyond the confines of the Earth.

CHAPTER 1 – ROLE OF INTELLECTUAL PROPERTY RIGHTS IN OUTER SPACE

WIPO an intergovernmental organization is responsible for the protection of intellectual property throughout the world through cooperation among States or in collaboration with international organizations. Outer space operations are the result of intellectual creativity, and space technology is regarded as the most advanced technical domain. Only in recent years IP protection related to outer space activities has raised wider attention. One of the many reasons behind this is that the space activities which were once government-owned are now privately owned. Remote sensing from space, direct broadcasting, and research and manufacturing in a microgravity environment are all part of space activities.[1] Further, one of the reasons is the privatization of entities. Due to the technical and financial resources used in space projects, it becomes important for the government to collaborate with private entities. Private entities while financing expects that the research and development investment is recovered in the future. This is the reason the protection of intellectual property rights will have a positive impact on the participation of private entities in the development of outer space activities and further in the development of space technology. Under international corporation schemes, more and more space activities are operated if we talk about International Space Station. This is why there is a need for a uniform, simple, and reliable international legal framework. Even though national IP laws are well-coordinated, different national laws follow distinct principles. Due to advanced space technology business opportunities are emerging. For instance, though it is a dream for the general public, space transportation technologies are developing technology for space tourism. One of the main concerns when we talk about intellectual property and outer space activities is related to patent protection of inventions that are either created or are used for outer space activities or the concern is related to copyright protection of databases which is using data that is acquired from the space activities.[2] If in future space tourism becomes possible then the issue of protection of industrial designs and trademarks will raise. The importance of establishing a legal regime that will effectively protect IP in space cannot be overemphasized and further lack of legal certainty will influence the advancement of space research and international cooperation. Limited exclusive rights provided by intellectual property protection would provide competitive advantages to right holders, either through licensing or by prohibiting competitors from exploiting a specific technology. For instance, the acquisition of patents is viewed as proof of the technical competence of the companies. The ability to license intellectual property also allows for the negotiation of cross-licenses with other parties, which is especially useful when a single space technology is a combination of several high-tech.

The International Conventions concerned with Intellectual property are[3]:

• Paris Convention for the protection of Industrial property: It is the basic international treaty of Intellectual property but does not expressly consider the issues or questions related to inventions in outer space. With regards to patents, the Article related to outer space activities is Article 5ter[4].
• Berne Convention for the Protection of Literary and Artistic Works: This is the basic treaty related to copyright and related rights. Same as the Paris convention, this convention does not consider the issues and questions related to Intellectual property in outer space.
•  WIPO Copyright Treaty: Article 8[5] ensures authors' rights to enjoy the exclusive right of authorizing any communication to the public of their works, including making these works available to the public in such a way that members of the public can access them from a place and at a time that they choose. Transmissions to and from a spacecraft are also covered by this article.
• TRIPS Agreement: This agreement does not directly address the topic and question of intellectual property rights in space. Furthermore, patents must be available and patent rights must be enjoyed without regard to the site of invention, according to Article 27.1[6]. As a result, national legislation must ensure that patents for inventions made in space are given and enforced in the same way that patents for inventions made elsewhere are.

The current international space law is contained in five international agreements. The first is the Treaty on Principles Governing States' Activities in Outer Space Exploration. Second, an agreement on astronaut rescue, astronaut return, and the return of objects sent into space. The third is the International Liability Convention for Damage Caused by Space Objects. Fourth, is the Convention on the registration of Substances that are Launched into Outer Space for use or exploration, and lastly, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. But these above agreements don’t contain any provision related to Intellectual property. Further, following principles under international space laws to examine whether the general rules on intellectual property protection need adaptation or exceptions are first, Article I of the Outer Space Treaty[7] which underlines the “space benefits” clause as per which using or exploring outer space should be carried out “for the benefit and interests of all countries, regardless of their economic or scientific advancement, and shall be the domain of all mankind." Article II of the above underlines the “non-appropriation of space”. While recognizing that outer space should not be appropriated, Article VIII[8] of the Treaty establishes the premise that the registration has jurisdiction and authority over space objects and individuals deployed into space. While in outer space or on a celestial body, you have command and control over such an object, as well as any of its employees. Second, Article II of the Registration Convention[9] lays down that the launching State shall register the space object using an entry in an appropriate registry which it should maintain. Third, the UN Committee which was based on Outer Space use peacefully issued a declaration based on the international cooperation in the exploration and use of outer space for the benefit and interest of all states, with special attention to the needs of developing countries.

When we talk about copyright protection for satellite broadcasting and remote-sensing activities, the European Union plays an important role. They create an environment where there are no legal uncertainties that will hamper the transfrontier broadcasts. With regards to patent protection and microgravity activities, the main questions which were raised were first, which European patent law will protect the research process that is conducted in space and further if there is infringement has occurred in space will that give a rise to liability under patent laws? Second, the legal consequences of inventions that are developed in space. The European Patent Convention provides for the acquisition of a "bundle" of national patents of the countries party to the Convention, as stated in the application, the patent thus has the effect of a national patent in each of the nations mentioned in the application.

Outer space, like the high seas and Antarctica, is free of state appropriation and sovereignty. This indicates that space cannot be appropriated through usage, claim, or any other method. A State, on the other hand, retains jurisdiction and control over items it sends into space.

As a result of this scenario, the United States patent law was amended. This law also applies to inventions in outer space that occur onboard space objects within the jurisdiction or control of the United States, according to the legislators.

CHAPTER 2 – INTELLECTUAL PROPERTY IN OUTER SPACE: INDIAN PERSPECTIVE

In India, as in other nations, the application of intellectual property rules to space-related activity is still in its infancy. India is a signatory to international treaties such as the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Treaty, among others. Despite this, India's status is similar, and there is no explicit national space legislation in place.[10] The law is being introduced to promote and regulate India's space activities, as well as encourage private corporate organizations to participate in space activities in India under the government's leadership and authorization through the Department of Space. The proposed bill's section 25[11] deals with the protection of intellectual property rights established during any space-related operations. However, the proposal has a flaw in that it suggests that intellectual property rights developed onboard a spacecraft be considered the property of the federal government. Despite the government's efforts to incorporate private participation in space activities, the bill fails to address and defend private interests. India is at a respectable stage in space technology today. Although there is no legislation governing remote sensing, the Indian Space Research Organization (ISRO) established a data policy in 2001. While involvement in private satellite systems is permissible, there is no legal framework in place to safeguard the operator and the government in the event of damage. Domestic laws, particularly those governing intellectual property rights (IPR), have not been updated to encompass space-related issues. India has a comprehensive national strategy for remote sensing but no national legislation. Section 25, which declares any intellectual property right created onboard a space object in outer space to be the property of the Central Government, is another unsettling measure. Even though the Draft Bill promises to encourage further private sector participation, any policy that appropriates private property — essentially claiming ownership and state authority in outer space – will discourage private investment and participation. The bill is a positive step toward developing the space industry, but it should consider separating space and ground activities to create clearer laws for commercial conduct, international commitments, national security issues, and intellectual property protection.

The government's announcement that private players will be allowed to participate in space operations, as well as the proposed Space Activities Bill 2017, demonstrate the government's willingness and obvious aim to preserve space IP. India, like many other nations, has yet to enact space legislation. As a result, when compared to other developed and developing countries, the absence of domestic space legislation is a key flaw in the Indian legal system, and it is suggested that a complete and futuristic domestic enactment on outer space operations be drafted.
All international space accords, which make up most of the international space law, have India as a signatory. India was also instrumental in the United Nations General Assembly adopting five sets of legal principles for the application of international law and the promotion of international cooperation and understanding in space activities. By a series of entries in List I of the seventh schedule to the Indian Constitution, all sectors directly or indirectly related to space operations under the Indian Constitution fall under the realm of the Union.

Finally, applicable legal norms and procedures relating to both public and private law components of space activities must be clarified. Public laws deal with the authority of authorities in the sphere of space. Fairtrade practices, business law, insurance and indemnification, securities, contracts and particular performances, torts, personal property, patents, copyrights, and other intellectual property rights, among other things, are all covered by private law. As a result, India must pass National Space Legislation as soon as possible. Before enacting space legislation, India must critically and objectively evaluate all legal and commercial issues relating to local and international space activity. By properly defining the standards and procedures, the related regulatory risks in the provision of authorizations, licenses, permits, and approvals for communication satellite activities must be minimized. A well-defined space law will allow for greater capitalization and optimization of existing infrastructure and resources by, first, fostering orderly and organized expansion of the space business by recognizing and legitimizing ongoing space programmers. Second, providing opportunities to future domestic and foreign space operators. Third, fostering indigenous technological development that meets international norms. Fourth, establishing a mechanism for enforcing and preventing the misuse of space operations, and finally, imposing severe penalties on offenders of space law.
To create and enact its space laws, India must critically and objectively examine the provisions contained in other nations' space laws as well as US Space Laws, such as the Commercial Space Act of 1998, the Land Remote Sensing Policy Act of 1992, and Inventions in Outer Space. As a result, the proposed legislation should include provisions for the establishment of a national space agency, space licensing and certification, space economic conditions, space infrastructure, space safety and liability, space insurance, international cooperation, and the protection of intellectual property rights in outer space. This draught should be a synthesis of disparate regulations to produce a complete and harmonized space law that is advantageous to our country.

CHAPTER 3: RECENT ACTIVITIES AND RECOMMENDATIONS IN INTERNATIONAL TREATIES OF OUTER SPACE

There is an essential need for an internationally approved legal framework to control IP in outer space activities. Because most countries are signatories to the Outer Space Treaty of 1967, the Rescue Agreement of 1968, and other comparable accords, including intellectual property, it will be useful to include them. Furthermore, countries should enact specific national space legislation that incorporates the domain of intellectual property in space while adhering to international treaty regulations.

In addition, the Madrid Protocol can be expanded to address a variety of challenges. There may be additions to the treaty relating to intellectual property in this present Protocol. Furthermore, the new treaty can be implemented along the lines of the ISS Intergovernmental Agreement 1999's IP provisions, or the current treaty can be amended to incorporate IP supply. Members of the international community must draft an international convention that includes the full range of intellectual property protection in space operations, as well as enforcement mechanisms to protect intellectual property owners' rights from infringement. WIPO had previously researched the necessity for industrial property protection for inventions generated or used in space, as well as the laws and principles that apply to them. The discussion centered on issues of international industrial property law. For example, there is the problem of territory and jurisdiction, as well as legal concerns relating to space-faring governments' cooperation efforts. The key question raised in this study was whether the laws that apply to inventions in one region will also apply to spacecraft registered in that country. The second problem concerned the standardization of contractual clauses relating to the protection of inventions and secret information that are either developed or used in international cooperative agreements between spacefaring states. The UNISPACE III, which was a major intergovernmental conference aimed at creating a blueprint for the peaceful use of outer space in the twenty-first century, held a Workshop on Intellectual Property Rights in Space in July 1999. The Workshop's proposals were updated and endorsed by the Conference plenary and were included in the Conference Report as follows, first, considering the growing commercialization and privatization of space-related activities, more emphasis should be paid to intellectual property rights protection. Intellectual property rights, on the other hand, should be considered alongside international legal principles developed by the Treaties and declarations, such as those relating to the principle of non-appropriation of outer space, as well as other relevant international conventions, that have been ratified by the United Nations. Second, the viability of harmonizing international intellectual property norms and regulations relating to intellectual property rights in outer space should be investigated further to improve international at both the government and private sector levels, coordination and collaboration are essential. The potential need for laws or principles covering concerns such as the applicability of national legislation in outer space, ownership, and use of intellectual property rights produced in space activities, and contract and licensing procedures might all be reviewed and addressed. Third, all countries should ensure that intellectual property rights in space-related technology are effectively secured, while also encouraging and facilitating the free flow of basic research data. Fourth, educational initiatives linked to intellectual property rights in space should be encouraged. Following the UNISPACE III, at the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space (COPUOS), some delegations proposed that intellectual property issues be included on the agenda to be considered by the Subcommittee. Such a proposal, however, did not find enough support from the Subcommittee Members.

The protection of property rights in space transmission has become increasingly crucial as satellite transmission and receiving technology has advanced. Since the 1960s, preventing illicit interception and the use of copyrighted works carried by satellites has been a global problem. The introduction of direct broadcast satellite technology has also caused copyright concerns. In this type of broadcasting, the originating organization handles the distribution and, as a result, performs a broadcast in the traditional sense. The protection of intellectual property rights is intertwined with the consideration of human rights and sovereign rights at the United Nations.[12] The Working Group should consider the precedents set by NASA in resolving challenges connected to intellectual property protection in space.

CONCLUSION

To conclude, intellectual property plays a significant role in space activities in general, as well as ESA's, to safeguard and promote R&D findings and encourage the industry to select creative works. The ESA policy in this area is consistent with the main characteristics of Intellectual Property, namely, it fosters the publication, diffusion, and disclosure of innovations to the public to promote scientific knowledge improvement. Although a variety of public policy measures could be used to entice private sector engagement, intellectual property protection will be critical to the development of effective public-private space business models. While it is difficult to predict the future, intellectual property protection is expected to be one of the most important factors in establishing the institutional and regulatory environment that will enable the growth of the space industry. Due to a lack of legal certainty as to how IP law's territorial jurisdiction could apply to extraterritorial operations on a spacecraft that is subject to nationality jurisdiction, registered space objects are treated as quasi-territory for intellectual property purposes under several international agreements relating to international space projects. Indeed, it appears that many of the practical issues that arise from the commercial implementation of space technologies are due to the territoriality principle and disparities in national intellectual property law. The growing international nature of trade and business necessitates the protection of intellectual property assets outside of the home country's borders. Faced with this challenge, several treaties and recommendations have been adopted under the auspices of WIPO to facilitate international access to the patent system, and efforts for further harmonization of intellectual property law and practice have been undertaken in WIPO in all fields of intellectual property. Although, on a practical level, harmonization of national intellectual property law and practice would alleviate some of the obstacles faced by space agencies and companies. Conflicts between Intellectual Property Laws and Space Law regimes could be resolved by the development of a harmonized system by the international IPR and Space Law communities under the aegis of UN bodies such as UN COPUOS and WIPO. Such a unified IPR regime for outer space should completely conform with international space law's essential principles as well as other international responsibilities. It is also strongly advised that the harmonized system considers the interests of developing countries and encourages moral and ethical use of outer space for the benefit of humanity.

[1] Issue paper prepared by the International Bureau of WIPO, “Intellectual Property and Space Activities”, 2004, https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf

[2] Ritesh Mehra, “IP protection in Outer Space”, ILI Law Review Vol.II, Winter Issue 2019, https://www.ili.ac.in/pdf/rm.pdf

[3] “IPR protection in outer space activities”, http://www.legalservicesindia.com/article/790/IPR-protection-in-outer-space-activities.html

[4] Article 5ter - which provides that there is no infringement of the rights of a patentee in the case of (I) the use on board vessels of other countries of the Paris Union of devices forming the subject of the patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the water of the said country, provided that such devices are used there exclusively for the needs of the vessel; (ii) the use of devices forming the subject of the patent in the construction or operation of aircraft or land vehicles of other countries of the Paris Union, or of accessories of such aircraft or land vehicles, when those aircraft or land vehicles temporarily or accidentally enter the said country.

[5] Article 8 of WIPO Copyright Treaty- Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(i), 14(1)(i) and 14bis(1)(i) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

[6] Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, if they are new, involve an inventive step, and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70, and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology, and whether products are imported or locally produced.

[7] Article 1 of Outer Space Treaty - 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.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.

[8] Article VIII of Outer Space Treaty - A 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. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

[9] Article II of Registration Convention - When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.

[10] Nishu Kumar, Khurana, and Khurana, “India: IP Laws in Outer Space”, 2021, https://www.mondaq.com/india/patent/1038616/ip-laws-in-outer-space#

[11] Article 25 of Space Activities Bill, 2017

[12] Luxenberg, Barbara, "Protecting Intellectual Property in Space", https://core.ac.uk/download/pdf/17231696.pdf