IPR AND THE OUTER SPACE: ISSUES AND CHALLENGES
Category: IPR Law
「 ✦ Content ✦ 」
Many states and private organizations are investing in the exploration of outer space for research, profit, and experimentation; hence a rise in concern over how juridical novelties on the protection of intellectual creations are recognized in space. This article also looks at the environmental legal regime and statutes, and the problems with the application of IPR regarding outer space operations. It also examines important changes, important judicial decisions, rulings from jurists, and the findings/ recommendations of different law commissions on the IPR regime and protection in this peculiar context.
KEYWORDS: Intellectual Property Rights (IPR), Outer Space, Space Law, Privatization, Innovation.
INTRODUCTION
Although space where was considered a territory for state experiments, now it is rapidly transforming into a commercial area, with private companies participating in space business like satellite communication, space tourism, and space mineral resources extraction. This growth has however led to an increase in the need to protect Intellectual Property Rights (IPR). However, outer space is different from the terrestrial environments in many ways because it is an international and alien jurisdictional environment. There are outstanding uncertainties related to the enforcement of IPR in space: The mentioned legal instruments have their origin on the premise of traditional legal systems but are not particularly applicable to space activities. The development and regulation of IPR protection in Outer Space and the difficulty for legal systems around the world to properly address concerns involving intellectual creations in these areas are explored at length in this article.
UNDERSTANDING IPR AND OUTERSPACE
Intellectual Property Rights (IPR) refer to those that protect creations of the mind which include; innovations, literary and artistic works and symbols or designs. In the space industry, IPR has a role of helping the promotion of new ideas to come up and correct protection of ideas such as satellite technology, space exploration devices, and communication equipment. IPR typically includes:
1.Patents: Patents, serve to protect inventions and technological processes.
2.Copyrights: Preserve documents of historical significance, and works of art.
3.Trademarks: Guard uniformity to brand image, emblems, and logos.
4.Industrial Designs: Protect the uniqueness of the given design.
5.Trade Secrets: Writing security for confidential business information.
The major concern here as relates to IPR in outer space is the question of sovereignty or the lack of it. Since space is not under the jurisdiction of any country, the current ground laws therefore encounter difficulties in how to regulate the formation and application of IPs created in space.
OUTER SPACE: THE FINAL FRONTIER FOR INNOVATION
Outer space has also evolved from a mainly governmental affair to a business realm with advanced reliance on private companies. Current Satellite Communications market stakeholders include SpaceX, Blue Origin, and OneWeb with their interested ventures such as Satellite Communications, Space Mining, and Space Tourism among others investing in billions of US dollars. Like China, India is also deepening its involvement in outer space through the Indian Space Research Organisation (ISRO) as well as private players. However, the present legislation does not contain the regulation of how the intellectual property created or utilized in space can be defended, especially if an invention belongs to different states or was produced during intergovernmental space expeditions[1].
INTERNATIONAL LEGAL FRAMEWORK
There are two main international Treaties that regulate outer space: the Outer Space Treaty of 1967 and the Moon Treaty of 1979. These treaties define outer space as the ‘‘common heritage of mankind’’ and therefore international law does not allow states to acquire sovereign rights over celestial bodies. However, they do not deal with the problems of intellectual property rights directly and correspondingly. Currently, WTO’s TRIPS Agreement (1994) governs IPR on Earth but equivocally though because it doesn’t include outer space, the issue has remained rather unresolved on a global platform.
Many countries have attempted to reproduce the national laws into space for application in the outer cosmos. For instance, the United States has adopted the Commercial Space Launch Competitiveness Act (CSLCA) of 2015, this legislation preserves inventors’ rights to patents resulting from inventions made in space on board of US-flagged ships. Likewise, the European Patent Convention puts it that an invention made onboard a spacecraft that is registered in any of the convention countries can be patented under European laws[2].
INDIA’S LEGAL FRAMEWORK FOR IPR IN OUTER SPACE
The laws of IPR in relation to outer space of India are still in nascent stage as much as it sounds alarming due to the recent space activities by the country. Currently in India, the specific legislation is Patents Act, 1970[3], Copyright Act, 1957[4] and Trade Marks Act 1999 that provide territorial shield but there are no laws for IPR protection in the space technology inventions. There are no provisions in these laws relating to inventions or creations made in outer space or in some cases on any Indian space craft where question of jurisdiction will arise.
Another legislation, The Draft Space Activities Bill, 2017 that sought to provide a legal framework to the accomplishment of space activities in India also does not provides for any provisions on IPR thereby leading to legal inconsistencies concerning protection of inventions developed from space-based activities[5]. United State of America has made some provisions for the protection of inventions that relate to space and one of this is the US Commercial Space Launch Competitiveness Act passed in 2015. Similar provision has been recommended and is been awaited in India based on the Law Commission’s 267th Report in 2017 which suggested to include space inventions [6]in the protection law enumerated in the Patents act 1970.
ISRO’S INVOLVEMENT AND CHALLENGES
ISRO as such has been the central player of the space research and technology development in India. ISRO exclusively has been established with primary objective of scientific research and protection of Indian territory, but it is gradually turning into a commercial organization. For instance, Antrix Corporation which is ISRO’s commercial branch has leased out satellites for several private and foreign parties. As such growing international partnerships, concerns as to ownership and protection of intellectual property has been of significant importance.
ISRO works with other private organizations and research institutions and many times, they design a technology or an innovation during the space mission. This is the case even as there is some uncertainty as to how IPR is divided between these entities. As for a concept in a spacecraft launched in India or a mission controlled by the ISRO, establishing the proprietary rights and the legal coverages to protect such them may be tricky business if foreign players or multinationals sit in the picture.
Further, the growth of private players’ space activities due to liberalisation through startup policies and reforms to adopt space reforms to launch private companies makes it essential to protect IPR. The private companies that would be engaged in space tourist services, space transportation or space mineral resources exploitation, satellite providers, space manufacturers will need art to safeguard their innovations particularly when conducting business with their foreign counterparts.
INDIAN COURTS AND OTHER SPACE RELATED ISSUES
Unlike other countries, Indian courts haven’t yet come across direct cases on IPR of outer space although the Indian patents registrations have come across many high tech inventions and conflicts of patents of different countries. It explains the strategies like Bayer Corporation v. Union of India (2014), involving case on patent rights of companies in the pharma sector where justice shows the paradigms of both innovation as well as public policy. Similar considerations may be made regarding space-related technologies, where public interest in collaboration and peaceful utilization of outer space needs to be reconciled with the parties’ interest in the ownership of ideas and inventions.
FUTURE DIRECTIONS AND AMENDMENTS
1.Amend the Patents Act: Following the recommendations of Law Commission, amendment to the Patents Act, 1970 of India to patent space related inventions should be made. This would clear the ambiguity of Indian companies and research institutions who develops the technology in conjunction with ISRO or foreign partners.
2.Develop Space-Specific IPR Policies: India needs to develop specific IP rules for space which can effectively deal with issues which crop up when the country gets indulged in outer space activities. These policies should include; ownership, enforcement and the dispute resolution mechanisms for IPR in space.
3.Collaborate on International IPR Frameworks: India should actively engage itself for framing the principles of international laws for IPR in space area. This could be done through interface of two multilateral bodies, which are the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) and the World Intellectual Property Organization (WIPO).
4.Strengthen Private Sector Involvement: With the increase in privatization in the Indian space sector the government must lay down legal rules regarding patents and licensing of Intellectual property. This will make private companies to invest in space activities as well as propel innovation; this is because they will fully have confidence in protecting their inventions.
CONCLUSION
With India emerging as a new player in space exploration and in commercial space activities, the challenge to protect IPR in outer space becomes a concern. The present legal structure in India does not suffice to respond to the dynamics of IPR in space and the required changes to the local legal environment are the amendments to the Patents Act as well as other IPR statutes. Further, there is a need to cooperate internationally in establishing a common legal regime of IPR in outer space.[7] India must take preventive measures to mitigate these challenges in order to keep enhancing the growth of the space sector without compromising on the innovators’ and businesses’ legal rights of their inventions and creations.
OLQ is a Pan-India basis law firm connecting legal expertise nationwide.
WRITTEN BY: PAYAL DEVNANI
GUIDED BY: ADVOCATE ANIK
[1] Arpan Banerjee, "Intellectual Property Rights in Space Activities: A New Era," 53 Indian J. Int’l L. 410 (2013)
[2]Duncan Blake & Steven Freeland, "The Present and Future Regulation of Space Activities," 33 Annals Air & Space L. 199 (2008)
[3]The Patents Act, No. 39 of 1970, India Code (1970)
[4] The Copyright Act, No. 14 of 1957, India Code (1957)
[5] Draft Space Activities Bill, 2017 (India)
[6] Law Comm’n of India, 267th Report: National Space Legislation for India (2017)
[7] S. Srinivas Kumar, "Legal Challenges in the Commercialization of Space Activities in India," 57 Air & Space L. 83 (2022
