Role of Intellectual Property in Space Industry

I. Introduction

Even Globalization and privatisation have had an impact on outer space, as they have on other sectors, and many private businesses are actively working with the government to reach new milestones in space. These private organisations provide services like as broadcasting, space sensing, manufacturing, and the delivery of materials for the launch vehicles, among others.

In India, the Indian Research Space Organization (ISRO) is the principal body working in the realm of outer space under the Department of Science. With the emergence of commercial entities in space-related activities, it has become necessary to develop our international treaties on outer space to address a variety of issues. Intellectual property is another of those aspects that requires the global community's attention.

Because research and development efforts in outer space require a significant expenditure, it is essential to consider intellectual property in outer space. Intellectual property protection will encourage more private commercial organisations to participate in the development of space technology. Despite severe constraints and the state sector's monopoly in outer space, a number of new space start-ups have recently developed.

Some of these start-ups even build whole satellites that might be launched by ISRO rockets or other foreign private firms like Space-X in the future, assuming regulations allow it. These private players are now officially permitted to use ISRO infrastructure, including as launch pads and vehicles.

The Indian National Space, Promotion & Authorization Centre (IN-SPACE) was formed under the Department of Science to help with this. IN-SPACE will collaborate with New Space India Limited, a government-owned corporation (NSIL).

IN-SPACE will scrutinise the needs and wants of private players, including educational and research institutions, as well as the sharing of ISRO infrastructure by private players, and will therefore operate as an interface between the both. The latter is in charge of serving as an aggregator of user requirements and obtaining commitments, as well as operationalizing launch vehicles and commercialising launches, satellites, and services. All parties have welcomed this decision with welcoming hands.. With this move by the government, private actors are now permitted to participate in commercial operations, allowing ISRO to focus on more important areas such as exploration, scientific missions, and defence.

II. Outer space and intellectual property laws

Outer space (commonly referred as space) is the region of the universe further than upper layers of Earth's atmosphere. It is widely used to differentiate it from airspace and territorial regions. The Fédération Aéronautique Internationale, however, has established the Kármán line, at an altitude of around 100 km (62 miles), to delineate the boundary between the working definitions of aeronautics and astronautics². Unlike in the past, space research is no longer limited to government organisations, but has expanded to include private companies as well. However, the involvement of non-governmental organisations is not without legal consequences; Article VI of the 1967 Outer Space Treaty states that States are globally answerable for national actions in outer space carried out by governmental or non-governmental organisations, and that the State must authorise non-governmental agency operations.³ Intellectual Property Rights in Space imply that the government is willing and able to protect innovations created outside of its traditional geographical bounds, in space. The protection grants the creator the right to pursue a legal redresses in the event of the creation being commercially exploited in Space. However, one of the major concerns with IP law's protection of Space works is that its basis was established down during the Cold War era, when Space was an object of interest for states rather than private enterprises within the nation. Intellectual property rights, on the other hand, seek to safeguard the interests of the creator(s). As a result, there is an inherent conflict between the principles of space law and the IP laws.⁴

The following are the main intellectual property rights that can be granted to space technologies:

1. Patents

Before obtaining a patent for their invention, any patent application must examine two major factors:

1. The jurisdiction(s) in which the technology is employed prior to being launched into space; and

2. The jurisdiction(s) and related "control" point(s) of the technology.

Patents issued by national governments are fundamentally territorial, making them difficult to give in a place where there are currently no borders, such as space. This problem was solved by Article VIII of the Outer Space Treaty⁵, which states that the State (Party to the Treaty) on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, as well as any personnel on board, while in outer space or on a celestial body. The technology's control point is also retained by the state that registered the technology. Depending on the space-bound technology, the patentee must examine either the first or second element, or a combination of both, in order to protect it.

2. Trademarks

There is currently no provision for awarding trademark protection to any inventions sent into space. Unlike a patent, it is concerned with the reputation and branding of the goods and services in question. Companies engaged in manufacturing and commercial upstarts, like as Space-X, Orbital Sciences Corp., and XCOR, would, for example, try to safeguard their innovation and reputation in Space. Virgin Galactic is intending to conduct commercial trade in outer space, and as a result, companies seeking to exploit this trade will need to obtain trademark protection.

3. Trade Secrets

Entities that are self-sufficient and can produce and run their space-related technologies without the assistance of a third party might use trade secrets to protect their innovations. They refer to any stored information within the entity that may be utilised in the functioning of the entity's company or company and is valuable enough to provide a real or potential economic advantage over others.

4. Copyrights⁶

Satellite transmission and reception can be protected by copyright. Since the 1960s, protecting intellectual materials broadcast by satellite from illicit interception and use has been a global concern. There is a significant insufficiency in the same. Though Article 22 of the International Telecommunications Convention and Article 17 of the International Telecommunications Union's Radio Regulations oblige member governments to keep certain telecommunications secret, its application to satellite signal interception is debatable.

As is obvious, no intellectual property rights can be claimed in Space as such because it is historically regarded as a common heritage of all mankind, and furthermore, the requisites laid down in the OST, which mandates the sharing of the benefits derived from Space, individual rights are far from being claimed. Only on an object launched into space may a person/nation claim exclusive rights. As previously noted, this element is governed by Article VIII of the Outer Space Treaty, which states that the launching State must register the object and, as a result, will have control over it. In cases when there are two or more launching states, it is up to the parties to decide which one shall have jurisdiction and right over the object. Despite the fact that the innovation is registered and protected under the laws of the country in which it is created, the legislation that governs the activities of such an invention is still a vast blank place.

III. States’ perspectives

Only the United States of America has adopted an explicit law creating a link between the three important elements: inventions, jurisdiction, and territory. Section 105 of the United States Code (Inventions in Outer Space) states:

(a) “Any invention made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of this title, except with respect to any space object or component thereof that is specifically identified and otherwise provided for by an international agreement to which the United States is a party, or with respect to any space object or component thereof that is carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space.”

(b) “Any invention made, used or sold in outer space on a space object or component thereof that is carried out on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space, shall be considered to be made, used or sold within the United States for the purposes of this title if specifically so agreed in an international agreement between the United States and the state of registry.”⁷

As a result, unless otherwise agreed by an international agreement, the patent law of the United States of America provides quasi-territorial effect on a space object carried on the registry of the United States of America.

There is no specific statutory provision of this kind in other countries, save that, as a result of ratification of the 1988 Intergovernmental Agreement; German intellectual property law applies to ESA-registered components. Some believe that, in the lack of a clear legislative provision, the applicability of national intellectual property law to space objects registered by that State is questionable. Others believe that, given the broad definition of territoriality under which national patent law may be applicable to ships flying that State's flag on the high seas and aircraft carriers registered in that State, Even if the national patent law does not expressly provide for such applicability to space objects, the national patent law may be applicable by analogy to space objects registered in that State. It should be observed that, in order to clarify this ambiguity in Europe, the European Commission's Proposal for a Council Regulation on the Community Patent states that the Regulation should apply to inventions created in outer space that are under the jurisdiction and control of one or more member States in accordance with international law. In the sphere of trademarks and industrial designs, there is a comparable level of legal uncertainty.

In India, like in other states, the status of intellectual property laws in space-related enterprises remains in its infancy. India is a signatory to international treaties⁸ such as the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Treaty, among others, despite this the situation is not different in India and there is no special national legislation. To encourage the general expansion of space activities in India, national space law is required, and the government intends to propose the Space activities bill, 2017, which has been presented to the prime minister. The law is presented with the goal of promoting and regulating India's space activities, as well as encouraging private corporate organisations to participate in space operations in India under the guidance and authorization of the government through the Department of Space.

Section 25 of the proposed bill provides rules for the protection of intellectual property rights established during any space-related activity. However, the provision recommends that intellectual property rights developed onboard a space object be assumed to be the property of the Central Government. In essence, if Facebook launches a satellite from India, will it not own the images taken by the satellite? Despite the government's move to incorporate private participation in space activities, the bill does not address or defend private entities' interests. The bill also fails to address critical concerns such as orbital patents and flags of convenience. The government's announcement to include commercial participants in space operations, as well as the introduction of the Space Activities Bill 2017, demonstrate the government's willingness and clear intent to preserve space IP.

IV. Conclusion

Space, the “common Heritage of Mankind,” presents a plethora of prospects for many joint venture programmes involving multi-state partners and private entrepreneurs for a variety of inventive applications for the benefit of mankind.In outer space, IP rights take on new dimensions, particularly for ideas developed there. Conflicts between Intellectual Property Laws and the Space Law regime could be resolved by the development of a harmonised system by the international IPR and Space Law communities under the aegis of UN Bodies such as UN COPUOS and WIPO. A harmonised system of IPR regulation for outer space should completely conform to the fundamental principles of international space law as well as other international responsibilities. Furthermore, it is strongly advised that the harmonised system considers the concerns of developing countries as well as supports moral and ethical use of outer space for the benefit of all humankind.

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