Article by Shreya Sampathkumar, 1st year Law Student, School of Law, CHRIST, Bengaluru- Winner of IP Matters' National IP Essay Writing Competition 2021
Private sector activity in space might take over the future, taking into account the pace of space innovation today. Potential services include space communication, remote-sensing direct broadcasting and space vehicles. These innovations will require legislations for different jurisdictions and the space. The hunt for commercial business in space has been active for months, especially in private companies. The development of new technology, on earth or space, requires one’s freedom to be creative and produce individual works, resulting in ideas or physical manifestations of ideas, which is the very element that intellectual property rights cover.1 There can be patents, trademarks and trade secrets.
Laws and rights in relation to intellectual property in space cover a large portion of international space treaties between different nations. Working in space or in space-related projects, one ought to keep in mind that space is an environment that is still in the process of being discovered. Phenomenon in space is unknown and thus, intellectual property is subject to difficulties in determining the manner of protection of these rights in space. The international space law is largely the implementation of the United Nations space treaties. These treaties do not offer much enlightenment regarding the question of intellectual property rights in space. Nevertheless, there is research being conducted on the rules and rights for space-related cases. There are several national and international systems for the protection of intellectual property on Earth.
In the future, there is scope for the very same set of rights to be used as a precedent for intellectual property protection in space. While there have been hypothetical concerns about managing space technology, the necessity for a space-centric judicial body is only a few years away. This article deals with the various situations that could require the application of the rights that one could potentially be bestowed with. It will also deal with the Indian context of intellectual property law in space.
Why is it important to protect IP in outer space?
In India, the Indian Space Research Organisation (ISRO) is the main entity working towards development in the field of outer space, governed by the Department of Science. The further India goes into space-related projects, the more essential it becomes to invest in intellectual property treaties, simultaneously permitting world community consideration. Giving private space organisations some intellectual property rights will ensure that there is fast-paced development in space-related activities as they are offered a good incentive to conduct research and extend innovation.
The creation and incentivization of a framework are vital to increasing initiatives to explore space. The existing regime of IP in the world does not vary drastically, although the consequences of implantation of the same laws have proved it a meritless initiative. In space, a flawed system might entail worse consequences, usually with socio-economic losses. Thus, a separate system of intellectual property right enforcement must be created. Since IPR is highly territorial, it can be difficult to draft legislation that can cover all areas of space-related IPR without ambiguity.
It has been well-established that all conflicts in law are dependent on the number of times similar issues arise, especially when the idea of distinct groups with different laws come into the picture. This entails that the jurisdiction of space IPR must be distinguishable from territorial IPR.
Raw data carried by satellites have no inherent value as such. Copyright will subsist in the final, processed value-added data after compiling the information to form valuable information. The images sent by Remote Sensing Satellites are of relevance in weather forecasts, terrain mapping, groundwater level detection and environmental monitoring. In the Indian scenario, if one refers to the Copyright Act, 1957, it will be difficult to establish the real author of raw data collected by a satellite. It does not have human intervention and thus cannot be copyrighted.
When the question of patents arises, it is essential to understand that the entire technological procedure to collect raw data is patented as an invention. The technology used is unique and different in different remote sensing satellites. This does not prevent other problems associated with patents in outer space. When a patent infringement occurs in outer space, it cannot be dealt with national patent laws since they are applicable only within the territory of the State itself and not to the outer space.
The past few decades have seen a monopoly of public sector jurisdiction regarding outer space activities. However, recent times have seen the emergence of numerous start-ups tackling space expeditions and several ambitious projects such as the manufacture of satellites, if the laws of the future adapt to permit them to do so. Having recently been allowed to use ISRO’s infrastructure, private space companies have been taken into consideration through the establishment of the Indian National Space Promotion & Authorization Centre (IN-SPACE) by the Government. This organisation will work in collaboration with New Space India Limited (NSIL), Government-owned. IN-SPACE will analyse and gauge the research and educational needs of these private companies and share infrastructure, acting as a network between private space ventures and ISRO. With this step in place, ISRO will be able to focus on other activities such as defence, missions and space exploration.
India, having dabbled feet into the space environment recently, has its space intellectual property regulations at a nascent stage. However, it has been an active member of International Conventions such as The Outer Space Treaty of 1967, The Registration Convention of 1975, The Moon Treaty of 1979 and The Liability Convention of 1972, which comprise the treaties negotiated and drafted by the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). The Paris Convention contains a section providing for the invalidity of intellectual property right infringement, which could potentially apply in relation with space-related intellectual property rights. Nevertheless, there has been no space-related legislation until this day.
To promote the expansion of space activity, there is a dire necessity for a legal framework of national space regulations, and thus, the government is preparing to bring in the Space Activities Bill, 2017, which seeks to dismantle government domination and increase private venture investment with Government clearance. Section 25 of this proposed bill has content relevant to intellectual property laws in the course of space-related activity. Despite this, there is ambiguity regarding the ownership of property created; for instance, if SpaceX launches a satellite from India and collects new data proving a certain theory, will that information belong to India or SpaceX? The bill is occasionally ambiguous and fails to tackle important aspects like flags of convenience and orbital patents. Regardless, the bill is a good beginning to push India to the forefront of space expeditions and related activities. It portrays the approval of the Indian Government in consonance with the protection of space intellectual property.
Need for International Regulation for Protection of IP in Outer Space
There is an immediate need for an internationally compliant body of rights and regulations concerning outer-space activities. Since India along with several other countries are already a part of numerous international space treaties, it is advisable that these treaties expand their rights and legislations to encompass the intellectual property aspects. In addition, nations ought to create legislation of their own to govern space laws and rights.
The International Space Station (ISS) hovers in low Earth orbit. It is a human-inhabitable artificial satellite. As the station nears completion, the intellectual property aspect gets increasingly valuable. Several countries, including the United States of America, Russia, Canada and Japan in association with the Member States of the European Space Agency (ESA), are collaborating to establish a framework of rights and liabilities, along with ownership and jurisdiction over components of the International Space Station.
There have been multiple experiments conducted onboard the ISS. The results and data obtained from these experiments need to comply with certain laws, although the complexity of the system of intellectual property rights for the ISS is arguably high since the entire satellite is a collaboration of components provided by the member countries. In an attempt to safeguard the rights of inventors and scientists, an intergovernmental agreement was signed by thirteen member states, including the United States, Canada and Japan.
Article 21 of the International Space Station Intergovernmental Agreement describes the jurisdiction of various member countries aboard the ISS. It was agreed that the member countries would have to coexist in decisions made regarding the ownership of inventions, in other words, in case an invention takes place on the ISS, the ownership of this invention will depend on the ownership of the component of the station where the invention has occurred. If an invention occurs on the Canadian component of the ISS, the patent laws of Canada would apply in this case. The nationality of the inventor is irrelevant. In this regard, the Outer Space Treaty contains Article VIII, which states that any object launched in outer space shall be owned and governed by the Country on whose registry this object is registered.
India has been a part of all international space treaties encompassing the very heart of international space law. The responsibility of beginning a new space policy to regulate IPR in space falls on the Indian Parliament. The increasing pace of space technology in India requires regulations that are capable of keeping up with this rate of development in space activities. The possibilities of space exploration, mining, experimentation, tourism etc.
There is an immediate necessity for space laws to be enacted to facilitate inter-departmental collaboration with the help of a standard set of rules. Space has created millions of opportunities for several joint venture programmes, to change the dynamic of life on the Earth and encourage innovation for the human race. A uniform system of intellectual property rights will take into consideration the needs of developing countries like India and boost ethical usage of innovations in outer space to advance humankind.
Considering the potential for the transition of territory-dependent IPR to drastically shift focus towards space activity, there is an immediate necessity for legal unambiguousness and incentive to promote investment and other experimentation while in outer space. The liability on private ventures for commercial reasons must be stated clearly and uniformly. The resources on space infrastructure, safety, liability, insurance and worldwide cooperation should be drafted in convergence and not render the body of space legislation arbitrary. There can be a court solely created to handle outer space intellectual property cases, however, there is a large gap before India reaches this stage of space activity development.
In the realm of outer space activity, it is usually the case that the general public is not directly affected by the implementation of such a right, which is why there has been a delay in drafting and implementation of space-related IPR. The Government must keep in mind that there ought to be a fine balance between economic gain and social justice while investing in space ventures. The rights provided must benefit not just the current stakeholders, but also those who, in the future, might improve upon or remodel the inventions of today.
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