International Framework For Protection Of Intellectual Property In Space

INTRODUCTION

Over the past few years, there has been an increase in outer space exploration activity. It is pertinent to note that almost all activities in relation to the use and exploration of space are an outcome of intellectual inventions. Since inventions have no boundaries there should not be any restrictions with regards to its protection. Human beings, the creator of inventions, should also have the right to protect their inventions made in outer space. Bearing this in mind, this article focuses on the need for a uniform international legal framework for the protection of intellectual property rights in outer space.

NEED FOR A UNIFORM INTERNATIONAL FRAMEWORK

While intellectual property rights are based on a strict territorial approach, the concept of territorial sovereignty does not exist in outer space.[1]The outer space is open and free for exploration, access, and use by all states. While the law governing outer space encourages for sharing of the benefit arising from space exploration, the intellectual property law protects the rights of the persons over the creations of their mind.

With these conflicting views, the question arises as to how would the intellectual property in outer space be protected. The need for a uniform international framework for the protection of Intellectual Property in Outer Space can be determined from the following points:

A. APPLICATION OF NATIONAL LAWS

The Outer Space Treaty (OST) which represents a basic legal framework of international space law, states that the jurisdiction and control over a space object would remain with the State Party that registers such space objects.[2]

Similarly, Art 5 of the Inter-Governmental Agreement states that each partner shall retain its jurisdiction and control over the elements it registers.

Thus, for the purposes of control and protection of national property, in outer space, including intellectual property, national laws shall be applicable.[3]However, National laws have their own regulation as to international jurisdiction. Thus, in case of any dispute, there would be a clash of different legal principles thereby defeating the purpose of international co-operation.

B. PRIVATE ENTITIES

Latterly, there has been a boost in the development of private and commercial activities in space. As privatization minimizes the economic burden of a state, states have been in favor of the participation of private entities[4] in outer space activities. The private sector has an indispensable role in the development of space activities.

But the lack of a uniform legal framework would lead to a contractual agreement between the parties. The Parties would be required to negotiate upon intellectual property clauses in each international agreement with regards to ownership, right to use, licensing, confidentiality, etc.

While such a contractual agreement is valid among the parties concerned, it does not bind third parties. Thence the interests and enthusiasm of private entities in space activities will wane.[5] In fact, the failure to hold third parties liable could discourage such private entities from playing key roles in space-related activities.

Thus, the acquisition and protection of intellectual property will have a positive effect on the participation of the private sector, generating the development of outer space activities and space technology in general.

C. INTERNATIONAL SPACE STATION

The Code of Conduct which has been drafted to protect the intellectual property rights of Space Station users remains less effective as in case of any breach the claims would be made according to the parties’ respective legal regimes for intellectual property.

The question with regards to the inventions made partly on a space object registered by one state party and partly on another state party’s registered space object, where the technology of one party is used to develop the product and the process of developing the product takes place on a space object registered by other party and such other related questions remain unanswered.

D. ISSUE OF FIRST TO INVENT AND FIRST TO FILE

Currently, there exist two main patent systems namely:[6]

  1. First to invent; and
  2. First to file

One of the achievements of the World Trade Organization, during the Uruguay Round of Negotiation, was the adoption of the first to file system.[7]

However, it is necessary to re-examine the feasibility and application of this system to the inventions made in space. The period of filing ought to be extended as the act of filing will only start after their return to earth and showing the product or invention.

E. DEVELOPMENT OF SPACE ACTIVITIES

Space activities such as Remote Sensing, Telecommunications, Earth Observation, Satellite Programming, Research and Manufacturing in space, etc. have been developed. The emergence of space tourism in the near future and space activities being commercialized, both mean that a uniform, secure and a definite international legal framework is the need of the hour.

CONCLUSION

Though Outer space and Intellectual property are conflicting in nature, the barriers between the two are not insurmountable[8].With the co-operation of all states, a strong intellectual property protection law can be formulated. Better protection would also serve to encourage and safeguard the participation of private entities in outer space activities thereby determining prompt development of space technology which would indeed benefit the entire mankind. Therefore, by adopting and enacting an international framework, the intellectual property issues in outer space can be addressed effectively.

Author:  Tanushri Joshi, a 4th-year law student of  RILS Law College, an intern at Global Patent Filing. In case of any queries please contact/write back to us at support@globalpatentfiling.com.

References:

[1] Article 2 OST.

[2] Article 8 OST.

[3] IGA ART 21, Inter – Governmental Agreement.

[4] Dan L. Burk, Protection of Trade Secrets in Outer Space Activity: A Study in Federal Pre-emption, 23 Seton Hall Review 563 (1993).

[5] Anna Maria Balsano, Intellectual Property within Public International Research Organizations: The Example of the European Space Agency, The Proceedings of the 36th Colloquium on the Law of Outer Space, IISL 3 (1993).

[6] Alejandro Piera, Intellectual Property in Space Activities: An Analysis of the United States patent Regime, 29 Air and Space Law, No.1, 50-51.

[7] Patent Perspectives, <http://www.ladas.com/patents/patpers.html>

[8] A.M Balsano, ESA Legal Affairs, Paris, Intellectual Property Rights and Space Activities.