The past decades have seen a sudden augmentation in the space exploration projects by various countries throughout the world. As far as these projects are concerned, the private sector has remained considerably dormant and it is more of a government dominated sphere. The present scenario is enticing more and more private entities towards these projects because of the prolificacy they promise. But the question here lies, whether sufficient impetus lies for these private entities to take up these commercial space activities?
The guarantee of protection of one’s creativity and ideas is inevitably crucial for a company to take up a project, and will also act as an incentive for private companies to undertake investment in commercial space projects. The protection of intellectual property on earth is being provided colossally by countries worldwide but this protection is hardly given the paramountcy it deserves in the matters germane to outer space. The relative upsurge in capabilities for the usage of space technologies have led to a twofold discussion on the enhancement of such intellectual property protections both at national as well as international platforms. Such discussions, however have remained more theoretical than real. [i]
NEED FOR SYNCHRONIZATION OF IPR AND SPACE LAW
The benefits which can be reaped from the unfathomable potential of space resources cannot be priced. This entails a series of methods to be implemented in order to reconcile the differences that exist in both private and public sectors and national and international boundaries. The enforcement if IPR with respect to space projects in order to provide ammunition to one’s creativity and innovation in technological as well as other fields could go a long way in acing the development of commercial space activities and incentivizing the private sector to allocate more and more manpower towards this cause. [ii]
Although there have been monumental achievements in this sphere through the implementation of WIPO and TRIPPS yet the special segment remains rather unaffected. The need of the hour is the enactment of a uniform legislative regime throughout the world that not only governs the IP matters in space but also lend a competing edge to the developing countries to gain recognition for their innovations rather than being overshadowed by the developed countries. The enforcement of such a legislation would require a standard mechanism such as an international arbitration in force. [iii]
THE PREVAILING MECHANISM FOR INELLECTUAL PROPERTY PROTECTION IN OUTER SPACE
The various aspects of outer space exploration have been dealt in the five space treaties published by the United Nations.[iv] However, the use of such treaties is limited only to the basic guidelines for creating such a framework. These treaties have left intellectual property out of their ambit as IPR’s are awarded privately. [v]
The Outer Space Treaty, 1967 has portrayed a tiff between outer space law and I.P. laws. It states a guarantee that outer space exploration doesn’t result in a claim of ownership to any piece of celestial body. Such a guarantee goes in utter violation of the I.P laws that are made to cater to the interests of private companies and insures a right holder as against such other laws. [vi]
On the other hand, although the Brussels Satellite Convention provides for “adequate measures to prevent the distribution on or from its territory of any other programme...” yet it has left the task of defining the term “adequate measures” to the discretion of individual nations which introduces a sense of arbitrariness and goes against the uniform legislation standard. This convention however, does provide a certain degree of protection to the content of transmission rather than the transmission device itself. Which clearly gives the idea that even this convention is quite ineffective in terms of protecting the IPR’s. [vii]
The only positives existing in this scenario is the strong arming provided by the US Law and the NASA Act to the upholding and expanding of the applicability of domestic IPR law to space activities. For instance, the application of patent law has been provided into outer space by the US Space Bill. Similarly, a flexible and comprehensive I.P. policy has been developed by NASA which has not only provided an enormously positive protection to the proprietary interests but has also encouraged industrial participation in commercial space activities.[viii]
The fervor for IP protection has also been seen in the European Space Agency which has drawn up numerous rules governing Intellectual Property Rights in the form of contractual regulations, clauses in International Agreements and through provisions in the implementing rules of optional programmes. The ESA has chosen to protect the names of its programmes by means of trademarks and patents.
The development of these provisions in India remains redundant. Even though India is a part of all international space treaties yet it still lags in a space legislation of its own. The rapid pace of industrializing in India has created a dire need for the country to pay the much needed focus that this segment requires. [ix]
Stated below are a few mechanisms through which greater protection in the field of IPR creation and enforcement could be achieved. An excellent way is through the application of trade secrets, patents, trademarks and copyrights in the following manner:
Trade secrets could be used as a potential tool for protection of those entities that are self-sufficient and can probably manufacture as well as operate their space related technology with third party interference. This could provide the entity a competitive edge over other companies with regard to any valuable information held within the entity itself.
The prevention from exercising extra territorial jurisdiction by national government in providing space related patents has been acting as a restriction. This problem has been sufficiently catered to by the article Vll of the Outer Space Treaty. This stipulates that a government on whose register office the object is launched into the outer space, that particular state shall retain the authority as well as the control over such an object. Such a control point also rests with the state that has registered the technology.
Trademarks pertain to the status and the branding strategies of goods and services. Even though such a trademark mechanism remains ambiguous at the current moment but it holds a lot of scope in imminent. Huge space giants like SpaceX, XCOR etc. could use such mechanisms for granting their novelties the necessary fortification as well as standing in space.
The armament provided by copyrights is a major need for the transmission as well as the reception provided by the satellites. The protection of unauthorized interception of transmissions has been a pressing concern in the recent times. Copyright issues can also arouse claims from the direct broadcast satellite technology. It was this particular deficiency that led to the formulation of the Brussels Satellite Convention. [x]
These tools, if properly utilized could make wonders in this sector and ensure greater participation and profitability in the years to come.
There is no doubt that intellectual property is indispensable for scrutinizing space and contributing to further investigation and enlargement. Certain disputes, however, continue to exist. The execution of any intellectual property rights may be incompatible with the concept of free and equal access to facts, evidence, and resources extracted from space activities, posing a barrier to such access. Space hides in itself a huge potential and could possibly be a cloud of hidden resources. In order to efficiently exploit that potential to the fullest, there is a dire need for striking a balance between the space law and the IP law. Space law on one hand could act as a vehicle for diving into the vast exploration possibilities that space provides where, IP law on the other hand could be an armament that would incentivize individuals and companies to take this dive in the first place.
In a nutshell, it could be said that each country at their autonomous level and at collective level should play a huge role and give greater importance to the issue of IPR’s and develop strong mechanisms and platforms to deal with such matters. The enforcement of trademarks, copyrights, patents etc. could be used as potential tools to overcome this tiff between space and IP law and come out with viable and state of the art technologies.
AUTHOR: Tisha Kalra
[i]Luxenberg, Barbara, "Protecting Intellectual Property in Space" (1985). Documents on Outer Space Law. 6. https://digitalcommons.unl.edu/spacelawdocs/6 [ii]Intellectual Property Law And The Outer Space (ipandlegalfilings.com) [iii]Intellectual property rights and space activities- Emerging issues- V. Gopalakrishnan [iv] Gorove, Stephen, et al. “Treaty Law and Outer Space: The Role of the United Nations.” Proceedings of the Annual Meeting (American Society of International Law), vol. 80, 1986, pp. 368–385. JSTOR, www.jstor.org/stable/25658326. Accessed 2 May 2021. [v]www.iplawsindia.com/ip-in-space [vi] Wehringer, Cameron K. “The Treaty on Outer Space.” American Bar Association Journal, vol. 54, no. 6, 1968, pp. 586–588. JSTOR, www.jstor.org/stable/25724439. Accessed 2 May 2021. [vii]IPR protection in outer space activities (legalservicesindia.com) [viii]US Dept. of State. 2007. Narrative to the Outer Space Treaty. http://www.state.gov/t/ac/trt/5181.htm#treaty [ix]Microsoft Word - IPR Issues in Space Activities A Comparative Study of India (manupatra.in) [x]Ibid [ii]