Space law is an emerging field of study and so is intellectual property. Even though both the fields are different in nature, they overlap in the areas of science and technology. Although the Cold War era witnessed significant development in space technology, the scientific information thereto was classified by the governments. However, with the increasing participation of private players in space exploration and science with countries other than their home-country, the need for protecting intellectual property of the technology becomes crucial. Unfortunately, intellectual property, despite the World Intellectual Property Organization’s (WIPO) recommendations and Conventions of United Nations, still remains largely a domestic domain for countries. Thus, the clashing domain of operation of space law and intellectual property law present a challenge in effectively protecting intellectual property pertaining to space industries.

This article will analyze this challenge deeply and evaluate the role of intellectual property law in space industry.

Intellectual Property Regime- India And International

India has a robust legal framework to protect intellectual property domestically, however, in an era of globalization, domestic legislations to protect technology which will cross seas will not prove to be effective. Thus, aid of international legal instruments must be sought.

The Paris Convention for Protection of Industrial Property, 1883 protects intellectual property related to industries. Even though the Convention does not explicitly use the term ‘outer space’, the Convention provides a wide definition to the industrial property. Article 2 of the Convention obligates the member-States to provide similar intellectual rights protection to inventions of nationals of other member-States as its own.

Another international instrument governing intellectual property rights is the Berne Convention for Protection of Literary and Artistic Work, 1886. This Conventions recognizes the following principles- (i) National Treatment (ii) Most Favoured Nation treatment, and (iii) non-discrimination. These principles allow authors and artists of other member-States to protect their works in other countries.

The World Intellectual Property Organization (WIPO) Copyright Treaty 1996 (WCT) specifically recognized the protection of computer programs and data-compilations.

These international legislations together aim to protect the intellectual property across the world. In the current times when the space technology is largely governed by State- actors the role of intellectual property is not huge. However, in the coming decade with privatization of space exploration, space technology will cross national-boundaries faster than humans. Thus, inevitably requiring a robust international regime for protection of intellectual property of space industries.

Challenges in Protecting the IPR of Space Industry

The Outer Space Treaty, 1966 imposes an obligation on the member-States to conduct space exploration in a manner which benefits all the nations on Earth. However, the intellectual property laws envisage protection and maximum benefit of the IPR-holder. Furthermore, Article XI of the Treaty obligates the member-States to inform the Secretary General of United Nations and the public about the nature, conduct, locations and results of space activities. Article XII makes the space-equipment open to representatives of other member-States on basis of reciprocity. Adherence to Article XI and XII become a challenge in IPR law since secrecy of the technology is a core of the legislations. Thus, there is a dissonance between the fundamental objectives Outer Space Treaty and IPR regime aims to achieve.

While critiquing the existing international IP laws, one must not forget that these laws were not formulated to protect the private space industry because private space industries started to boom in the 21st century and these international instruments are documents of the 20th century. These laws were made when space technology was still a national-government domain. Thus, pinpointing the lacunae in the patent or copyright or trademark conventions Treaties will be futile.

Furthermore, the sovereignty of nation-states is a significant impediment in the development of international IP regime. An IPR regime for space industry will require the participation of private industry along with governments. However, ensuring participation and representation of private industries is a challenge when the UN is criticized for not effectively representing governments in the Security Council . Thus, in order to protect International IP, mere amendments to the existing IP Treaties will not suffice. What is required is an overhaul of the international body, functionally and structurally. Without enforcement, there is very little possibility of protection of rights in international scene due to sovereignty of nations. Otherwise, the IP protection will be a privilege of those countries who have the capacity to impose sanctions.

Why are IPR Relevant for Space Industries?

Incentive: Space industries like any other industry run on incentives. With the increasing involvement of private players in the space, the significance of incentive (in terms of profit) and as a consequence IPR becomes crucial. The incentives will provide a drive to private players to invent and develop technologies which government space organizations due to administrative red tapes and lack of direct incentive fail to do. An example for the same is the booming pharma-industry. Thus, intellectual property will provide incentive and protection to the inventors in the space industry.

Compulsory licensing: Even though it is claimed by Conventions of the United Nations that space technology must be used for common benefit of all humankind, the interest of capitalistic private companies will often go contrary to the ideals of the Conventions. Thus, in such a scenario for the greater good of humankind provisions like ‘compulsory licensing’ will become significant. Thus, the IPR regime will provide a procedural framework for acquisition of space technology from private entities for public interest.

Who owns what: With the increasing complexity in the space technology and the data collected using such technology, it becomes difficult to ascertain who has right over what? The matter is further complicated by the problematic distinction between launching state and state of registration. A robust IPR regime for the space industry will help to provide a clearer distinction between who owns what.

Control on militarization of space: Militarization of space is a major threat of the 21st century. With space being an area of interest to several countries with nuclear technology, there exists an eminent threat of space objects with nuclear warhead. However, the threat can be reduced (though not completely eliminated) with an IPR regime where the United Nations or a global-body grants the rights. Such a body will be able to scrutinize every aspect of the technology being patented and flag any attempt to equip the technology with military capabilities.

Multilateral agreements: The role of nation-states cannot be ignored in space industry. Space industry will not just be technology and scientific data but also other aspects such as space tourism. Since space belongs to all of humankind, the only aspect where an agency can claim right over is the technology for space exploration and tourism. In such a scenario, there will be several multilateral agreements among nation-states with the nation-state having such technology. The trade we see today between nations through sea and air will be in space. Intellectual Property Rights will provide a framework to share the profits among various agencies.

IPR post colonization of outside world: With companies like SpaceX trying to colonize Mars, the need to formulate an intellectual property rights regime for beyond-Earth will become inevitable. Intellectual property will be made either on Earth and applied outside earth or in some cases it is possible that intellectual property is created outside Earth. Thus, it will be indispensable to have a global IP legal-framework.

Conclusion and Recommendations

Space law and industry is an emerging field. Space law though a separate field of study per se overlaps with multiple fields of law and science. And whenever there occurs a mix of law and science, intellectual property rights are a natural creation. However, the current legal regime for outer space does not cater to the complex needs of space industry’s intellectual property protection. This is mostly due to the territorial nature of IPR and extra-territorial scope of space laws. IP laws, despite globalization, are still largely a part of the municipal domain. Sovereignty allows nation-states to protect and promote their domestic inventions without recognizing intellectual property of other nations states. In such a scheme, the space industry as a whole suffers since the intellectual property used by space industry might have to be enforced beyond Earth.

However, the author believes that the system will adapt automatically with human intervention to the demands of the future. A Robust IP industry will provide incentive and protection to private space agencies. It will also strengthen international organisations such as UN since international IP cannot be implemented and enforced without a global body. The IPR regime will allow for compulsory licensing of space technology in case the technology is to be used for public purposes and the agency refuses to do so. Having a common and extensive IPR regulation will provide a clearer distinction between who owns what part of the technology. The Body responsible to grant and protect the IP will be able to scrutinize every aspect of the technology being protected and flag any attempt to equip the technology with military capabilities.

A global IP regime will transform the technology sector and be an impetus in the its development. The trade we see today between nations through sea and air will be in space. Intellectual Property Rights will provide a framework to share the profits among various agencies. An IPR regime for all nation-states Earth will allow for beyond-Earth enforcement of IPR claims.

Thus, the needs of the space industry will lead to creation of an IPR regime through evolutionary method. The framework to protect intellectual property of the space industry may not be result of one international legislation but several legislations. Even though IPR plays a crucial role and a robust IPR regime is the need of the hour, several factors such as sovereignty of States, lack of space technology with most States, and absence of a world government (the author is not arguing that a world government is the need) are challenges which require not just legal solutions, but political ones. Thus, the role of IPR in space industry and the challenges in realizing the same cannot be and must not be seen in isolation.

Title Image Source: University of Exeter

This article has been written by Nikhil Erinjingat. Nikhil is a 4th-year law student at Ramaiah College of Law, Bangalore. He maybe contacted at nikhileringinkat@ gmail.com.