Space of law

Author – Zeba Darvesh

Year – 2nd year

Course- BBA LLB

Title – Space laws and IPR

College – MIT WPU, Faculty of law

ABSTRACT

This blog conceptualizes the fact that after the advancement of science and technology, there has been significant growth in Space law, and an emerging question in Space law is the protection of intellectual property rights. This blog formulates the inadequacies faced by imminent countries like the US, India and the European Union in relation to IPR protection in Space. In this blog, the various intellectual properties, i.e., trademark, copyright, trade secrets, and patents that need to be protected in Space and their importance, have been highlighted. Furthermore, a comparative analysis of the current laws made by countries like the US, India, and the European Union has helped throw light on the inadequacies and the emerging need for IPR laws in Space.

INTRODUCTION

In recent years, there has been an excellent advancement within the field of science particular, within the area of Space. India and the entire world have been perpetually advancing and developing in matters of Space and technology that could be a terribly proud aspect for the world. In practical terms, Space law refers to the laws that govern areas and Space-related activities and explorations. Earlier space expeditions were only limited to government and public organizations, but today, even private and commercial enterprises explore the space regime. The legal justification is prevalent in the Article VI of the 1967 Outer Space Treaty[1] , which provides that States shall be responsible and obligated internationally for all national activities carried out by governmental agencies or by non-governmental agencies in outer Space and that also state shall authorize the activities of non-governmental in outer Space. These activities may include remote sensing from Space, direct broadcasting of signals, and launching space vehicle services, developing space research, among others. Such activities include continuous improvement, advancement and innovation, which create a need for protection of the same through Intellectual Property Rights (IPR).

IPR RELEGATED ISSUES IN SPACE LAW

Although space technology has advanced in recent years, issues and conflicts relating to intellectual Property rights have been constantly rising. Firstly, the issue relating to the applicability of any of the Intellectual Property Rights in Space law, e.g., Patents, according to the Outer Space Treaty 1967, the state in which the space object is registered will retain complete jurisdiction and control over that space object[2]. The question arises as to whether the territorial jurisdiction under intellectual property law permits national law’s extension to the objects that the respective country has registered and launched into outer space. In the absence of specifically stated international rules or international covenants concluded with reference to international space projects, registered space objects are treated as quasi-territory for intellectual property purposes.

Secondly, in the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), according to Article I and II of the Treaty,[3] the use and purpose of the space expedition are to increase the knowledge and information for the benefit of mankind irrespective of their country or state. While acknowledging the importance of intellectual property and the role it plays in the exploration of outer space and the further purpose development of science and technology[4], questions have been raised as to whether the granting and enforcement of intellectual property rights may come in direct conflict with the principles of knowledge and access to knowledge and information which has been derived from space activities and in terms of the freedom of exploration and developing of outer space technologies.

Another issue relates to the interpretation of Article 5ter of the Paris Convention[5] for the Protection of Industrial Property, which provides for certain shortcomings of the exclusive rights that are conferred by a patent in the public interest to guarantee the freedom of transport. The question that arises is whether the freedom of transport also applies to space objects, for example, in the transport of patented articles to or from a particular Space Station through a launching site in a foreign country. These issues are yet to be resolved by means of legislations and through treaties.

THE IPR’S RELATED TO SPACE LAW

The major Intellectual Property Rights which are in the threat of being violated in the day-to-day activities of Space law are Patents, Copyright, Trade Secrets and Trade Marks. Firstly, Patents are used to protect any invention, and It provides a legal right to the titleholder of exclusivity over the invention, and patents are territorial in nature. The question that arose was that since patents are territorial in nature, it would be a problem to grant the same in a region presently without territories, such as Space. This issue was resolved by implementing Article VIII of the Outer Space treaty [6], which specifies that the State (party to the Treaty), wherein the space object is registered and launched into outer Space, shall exercise its jurisdiction and control over such an object, and over any personnel thereof, in outer space or on any celestial body. The technology used by the State in doing such an activity is also within its control, and the jurisdiction is also retained with the State which has registered the technology. The patentee can use either of the aspects for the protection of his patent.

The creation’s essence is the method of creation or the technology used, termed trade secrets. Trade secrets refer to any valuable information which creates an economic advantage for the owner of the creation. When the creation’s owner is self-sufficient and does not indulge any third party, he can protect the trade secret and gain a competitive edge over the creation. However, if this trade secret would be out, then the owner would lose the economic advantage and the competitive advantage.

TRADEMARKS are used to protect word marks, sound marks or holograms, which help protect the reputation or goodwill of the goods and services. E.g., SpaceX is a huge brand that is engaged in the manufacturing of commercial upstarts, and they too need the protection of their brand and reputation, which is where the role of a trademark comes in. Although, there is no specific provision in any of the legislations or treaties relating to trademark for the goods or services manufactured by different organizations for the development of Space.

COPYRIGHT is another form of IP that mainly protects the original author’s literary, dramatic, musical, and artistic work. In space law, copyright can be used to protect the receptions and the transmission of various signals which are being received by the satellites. This copyright is mainly done to prevent unauthorized access and interception of these signals, which is a highly alarming cause since the 1960s. Article 22 of the International Telecommunications Convention[7] and Article 17 of the International Telecommunications’ Radio Regulations require member states to keep certain telecommunications secret. Such copyright issues can also emerge from the direct broadcast satellite technology in order to overcome such a deficiency, The Brussels Satellite Convention[8] was formulated.

COMPARATIVE ANALYSIS

INDIA

India has ratified the Outer Space Treaty, the Rescue Agreement, the Liability Convention and the Registration Convention. However, India has only signed the Moon Agreement but not ratified it yet. There are a few countries that have extended their IP laws to Space. Currently, India has regulated its first space law, Draft Space Activities Bill, 2017[9]. This bill allows the participation of the private and the public in the India’s Space Program. However, there are no provisions in this bill relating to IPR protection for space objects and companies.

USA

USA is one of the few countries in the world that have extended its IPR laws to Space, and this can be legally supported by the NASA Act [10]that contains explicit statutory provisions for the applicability of domestic IPR law to Space activities. In the US Space Bill, the applicability of patent law extends to space inventions and technologies.. The US has implemented these legislations in their judicial system in such a way that it promotes industrial participation in commercial space activities.

EUROPEAN UNION

European Union plays an essential role in satellite broadcasting by creating laws and provisions to ensure that these broadcastings remain uninterrupted by unauthorized usage, for which there is a need for legal provisions[11] . Other than satellite broadcasting, another essential task done by the European Union is the protection of remote sensing data. However, the question which arose is whether this data can be protected under copyrights laws. However, due to inadequate protection of the national copyright laws, this data could not be protected by existing copyright laws, and there is a gap that needs to be filled with adequate provisions.

CONCLUSION

As is evident, no intellectual property rights can be claimed yet in Space since the knowledge derived from various space expeditions and technologies must be shared with mankind. It is only on a space object that is launched into Space can a person/nation have exclusive rights over. As earlier stated above, Article VIII of the Outer Space Treaty governs the aspect which states that the launching State has to register the object and only then will it retain jurisdiction over it. In cases where there are two or more launching states that have registered the space object, then the decision as to which State shall retain jurisdiction is left to the parties to decide and determine. Though the invention is registered and protected under the laws of the nation (national laws) where it is manufactured although, the law which is to govern these activities. Therefore, there is an emerging need for laws and provisions in all countries to fill in the gaps created due to the lack of adequate provisions for the protection of IPR in Space.


[1] Outer Space Treaty (adopted 10 October 1967) art VI

[2] Outer Space Treaty (adopted 10 October 1967) art VIII

[3]Outer Space Treaty (adopted 10 October 1967) art I and II

[4]Anwesha Singh, ‘Intellectual Property Law and The Outer Space: A Promising Future Ahead? ‘(06 December 2018)

https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html

(last visited on 24, March 2021.)

[5] https://h2o.law.harvard.edu/text_blocks/6537 (accessed on 24 March, 2021)

[6] Outer Space Treaty (adopted 10 October 1967) art VIII

[7] International Telecommunications Convention (adopted in 1992 implemented on 1 March 1993) art 22

[8] The Brussels Satellite Convention (adopted on May 21, 1974)

[9] Draft Space Activities Bill, (adopted in 2017)

[10] The National Aeronautics and Space Act (adopted on July 29, 1958)

[11] http://www.esa.int/esapub/bulletin/bullet79/balsano.htm (accessed on 25 March, 2021)

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