Navigating the Final Frontier: Intellectual Property Rights in Space
Unprecedented opportunities have been presented to us since the dawn of the space age, these opportunities, however come with their set of challenges. One such challenge is overseeing the area of intellectual property rights in space. Because of their geographical nature and national appropriation, the existing terrestrial rules, or “Earthen Laws,” cannot be immediately applied in space. Nowadays, intellectual property is regarded as one of a country’s most valuable assets; extending this concept into space is fraught with difficulties.
This blog aims to delve into the intricacies of the ever-expanding scope of IP rights in space, with special attention to applying current terrestrial laws to space and finding probable solutions that guarantee IP protection and its incentivization in zero gravity.
Intellectual property’s intangible assets are rooted in a nation’s soil; they are split by borders and can only be enforced inside the borders of the nation that protects them.
The geographical dimension of intellectual property stems from the historical symbiotic relationship between IP rights and sovereign nations. As highlighted by Sharma and Pathak, this territoriality originates from the historical association of IP rights with sovereign control. However, outer space is governed by a different set of principles, primarily outlined in the 1967 Outer Space Treaty, which designates space as a global commons, free for exploration and use by all nations. Each country maintains sovereignty and control over its people, vehicles, equipment, facilities, stations, and installations on the Moon, according to the Moon Agreement.
The Registration Convention, requiring states to maintain a registry of objects launched into space, attempts to address jurisdictional issues by linking jurisdiction to the country of registration. That said, the concept of “Flags of Convenience” further complicates this, as firms may register spacecraft in nations with weak intellectual property laws to escape severe protections, a loophole that must be addressed.
When an innovation is developed in space, where there is no concept of sovereignty, how do we deal with ownership of such inventions in an environment where boundaries do not exist? Countries like The United States of America have amended their Space Act of 1958 to allow the issuance of patents for inventions that are used or created in space. A new patent policy has also been developed by the European Space Agency, which has the provisions of patenting inventions that are created by the personnel or facilities of ESA, in the space. At the present moment, there are no laws in our country that deal with the challenge of protecting Intellectual Property Rights beyond the Earthly borders.
The International Space Station is a great environment to study the interaction of various laws of individual countries. Each nation retains control over their module in the ISS, so any invention that is created inside that module will be governed by laws of that particular country. However, in a case where two astronauts of different counties on the ISS, come together to invent something that needs to be patented, then the division of ownership of that device needs to be addressed.
There is an urgent need for development of laws relating to outer-space inventions, looking at the complexities. The laws should be such that there is a balance between, protecting the rights of the inventors, fostering innovation and principle of space laws. Various authors advocate for development of a comprehensive legal framework, backed by international cooperation, which strives to create a balance of the principles of space law and interest of inventors.
Space-related information is a genus which can be further divided into three species, Inventions made on Earth for space use; Inventions made in space for Earth use; and finally, Inventions made and used in space. All three of these categories have different challenges which need to be dealt with separately. A major issue while dealing with inventions made in space is difficulties in enforcement due to jurisdictional ambiguities. A solution to this can be, basing the jurisdiction of the launching state or on the nationality of the inventor. Furthermore, in order to balance the principles of space laws, the concept of compulsory licensing, where other countries can use inventions under fair terms, reduces the monopolistic nature of patents and promotes a principle which is similar to ‘mare liberum’.
The fast-growing space exploration and commercialization sector requires a strong paradigm for intellectual property rights that goes beyond customary earthy borders. As explained in the discussion, the special character of space law, with rules such as the non-appropriation of outer space, runs extremely contrary to the territoriality embedded in IP legislations. The difficulties in the enforcement of patents in outer space, and more specifically related to jurisdictional uncertainties and the Flags of Convenience loophole, highlight the necessity for an international, harmonized system of IP protection in space.
The International Space Station provides a real-life example of how there can be a coexistence of various legal systems in space but also shows how complicated this arrangement makes IP enforcement. A specific legal regime will be important to establish for space-related inventions. This regime will provide a safeguard for inventors and innovators to safely harvest the fruits of their labor and thus encourage increased innovation in space technology. By promoting international collaboration and reframing current legal structures to better fit the environment of space, we can facilitate an environment in which innovation flourishes, the last frontier can continue to be a place of growth and possibility for all mankind.
Author: Pranjali Paliwal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References
- European Space Agency. “Patents and Space-Related Inventions.” ESA, 2023
- Sharma, Sajal & Pathak Shashank, “Patenting of Outer Space Inventions: In the Crossroads of Territorial and Outer Space Law”, 2023.
- Peter Treloar, “Investigating in Space Inventions: Patent Protection for Space Technologies”. Sprison & Ferguson, 2022
- Davidson, Kevin & Sicard, Keri. “Extraterrestrial Law: Protecting Patents in Outer Space and on Celestial Bodies.” IPWatchdog, 2023.
