By Nandini Agarwal and Shreyas Acharya

A major characteristic of International Space Law is the rapid pace at which it has grown. Most legal concerns over outer space were only fictional until about recently. This led to various terrestrial laws having to be adapted to space activities to allow them to be viable for the growing needs of the Outer Space Law regime. One such branch of law that needs work is the Intellectual Property Rights (Herein referred to as “IPR”) regime that currently exists. While the current IPR regime is suitable for recognising terrestrial IPR, they are blindsided to the many IPR related issues that could take place in space/on a spacecraft.

This article seeks to explore the current IPR regime, how it applies to outer space law, and how it may be adapted to be a better fit for the same. It seeks to do this through an analysis of the current IPR regime (by the means of various articles of international treaties and their inadequacies in addressing the needs of space law) and discussing its viability to support the growth of outer space law and its possibilities. 

Introduction: 

In this age of industry and technology coupled with increased privatization of space exploration and space-related technology, the need of the hour is to extend the regime of space law to address certain concerns lest it becomes a hindrance to progress. One such important concern that has been frequently spoken about is the need for a holistic Intellectual Property Rights (Herein referred to as “IPR”) regime that is well suited to the needs of creators and inventors who work on space related activities. IPR is an important element in promoting growth and protection of intellectual property by allowing many underdeveloped nations to secure, and safely use their developed technology without having to worry about it being infringed upon. This article is meant to highlight the importance of IPR in space law, current methods that exist, and how the regime could be improved to provide better international governance over intellectual property in the realm of space activities.

 Importance of IPR in space law

With the emergence of the industry which progressed rapidly and is heavily dominated by the private sector, the need to protect intellectual property became dire. This is because the lack of a proper IPR regime could hinder the progression of outer-space related acts. On the other hand, a well established and holistic IPR regime would allow creators and inventors around the world to protect their works and inventions. This would ensure steady competition, and hence would allow for progress to quicken rather than stagnate.  

Another important reason for an established IPR regime is to allow for international outer space law to function within its sphere to promote cooperation between states and to allow outer space to function as a global body. While many nation states follow similar IPR laws, other states apply them differently. An example of such a difference can be seen in the way the USA uses the first-to-invent system, versus India that follows the first-to-file system, which determines protection of intellectual property. 

Why is the current IPR regime not viable for space exploration/ activities?

The current IPR regime is heavily reliant on the aspect of nationality. It is after all national law and doctrines applied to interpret and apply laws that allow them to be exercised. However, how would this regime exist in outer space where unique circumstances exist that terrestrial IPR law may not have encountered before? The outer space treaty through article 1 mentions that outer space cannot be appropriated by any one nation state, implying that the concept of jurisdiction and nationality do not exist in the void of outer space. 

However, Space law depends on the creation of a “quazi-territoriality” and “temporary presence” or an extension of territoriality to allow for the exercising of national law even in outer space. This is possible through articles 1 and 2 of the outer space treaty of 1967. It allows for outer space to have a non-defined territoriality, while allowing states to retain and control space objects that were launched by it. Instead of instilling outer space with nationality or territoriality, it assigns sovereignty of man made space objects to the launching state. Temporary presence allows an inventor’s rights to be limited by limiting its territoriality, allowing for an act that would normally be infringement to be un-actionable. This allows for national IPR laws to be applied in outer space as well as allow certain intellectual property to be made and used temporarily in another state. 

A good example of where this is applied is the Inter-governmental agreement (Hereinafter referred to as “IGA”) on the international space station. It has several provisions laid down such as Article 21 , which creates the fiction of territoriality over outer space. This fiction is created through a combination of “temporary presence” and “quazi-territoriality”. It allows for member states to waive certain liabilities, and allows for the states to cooperate more through waiving certain liabilities of certain states in certain instances. For example, it allows inventions or works to be recognised as intellectual property as if it were invented/made on earth. It also obliges member states to recognise all IPR related applications made in the other member states, creating a harmonious IPR regime within the scope of the IGA.

However , Outer Space law suffers from the lack of a universal IPR regime that is able to pacify the concerns of territoriality and specific IPR concerns related to outer-space activities. While national IPR laws may be applied by nation states, this is not harmonious with the character of outer space law since it does not by itself guarantee any form of international cooperation. The outer space treaty is very clear toward its commitment to maintain a spirit of cooperation, and allow outer space to be a non-sovereign legal subject.

A universal IPR regime that applies to all space-faring nations is especially important because several IPR concerns do not/have not been able to translate well when they are applied to the domain of outer-space activities. A good example of such a concern was the interception of radio signals that were being transmitted through satellite technology, and other communication that may be carried out through satellite technology. Although the International Telecommunication Convention and the Radio Regulations of the International Telecommunication Union encompassed what was a major part of international communication law, it also proved insufficient in being able to condemn or protect intellectual property being transmitted through radio signals. Article 5 of the Paris Convention allows for a “temporary presence” for flights, ships and land vehicles so that IPR that may be invented on said vehicles has limited liability in another state. The doctrine of temporary presence is also used in the IGA through article 21(6). However , this does not apply to space objects and can only be extended to spacecrafts as the doctrine exclusively applies to vessels.

“Existing international copyright agree- ments such as the Universal Copyright Convention (UCC), to which the United States adheres, and the Berne Convention for the Protection of Literary and Artistic Works were not drafted to take into account unauthorized interception of satellite transmissions”. 

This implies that there is a disparity in what the IPR regime can offer compared to what the outer space law regime needs when it comes to governance and certain unique circumstances to space law. With a proper set of rules and direction for countries to abide by, it can lead to more international co-operation and through uniform laws that make it more practical for IPR to have a more international character.

Conclusion

IPR law allows for inventors to protect their work and allow for recognition as well as safety when it comes to infringement. The current IPR regime is either ill-equipped or lacks necessary characteristics to fully govern space activities and is hence unfavorable to be used in the outer space regime. Therefore, to allow for progress as well as to uphold the principles enshrined in the outer space treaty, a new IPR regime specifically tailored for outer space activities is the need of the hour. There have been multiple efforts from the international community to try to use existing international law as a way to enforce space law. However, no laws proved to cater to the needs of space law entirely. Some rather successful international agreements such as the IGA of the international space station have done so through states being obligated to maintain co-operation and protections for creators using doctrines such as temporary presence and quazi territoriality. However, no such obligation exists globally to enforce any laws related to outer space activities.

IPR governance is an important facet of law that must adapt quickly to counter specific concerns that may disparage or threaten the industry’s quick paced progress. The need of the hour is an all-encompassing international outer space IPR regime that can recognise, govern, and understand future concerns related to IPR on an international level. 

Nandini Agarwal and Shreyas Acharya are fourth year students studying at Jindal Global Law School.

Image credits – WIRED