Space law is considered to be an essential part of legislative framework of international law which governs the conduct of activities in the area above earth’s atmosphere. There are various other dimensions covered under this law such as preserving the space environment and protecting it, settling disputes between international space research agencies, imposing liabilities on the agencies that causes damage to space objects, communicating information about potential risk and danger in outer space. Intellectual Property Rights (hereinafter referred to as “IPR”) laws come to the rescue in such circumstances by protecting such creations, inventions and innovations.
With the increasing advancements in technology, the quest of mankind to grow has now gone up to the outer space. Many international organizations are investing and developing advanced technologies for research in space and the same should be protected. This Article provides a glimpse of interplay between increasing requirement IPR in space law.
ROLE OF INTELLECTUAL PROPERTY IN SPACE ACTIVITIES
Creating latest methods to research and explore space takes a significant amount of effort and expense in Research & Development (hereinafter referred to as “R&D”). This sector is loaded with numerous intellectual achievements, the rewards of which will benefit humanity as a whole.
To accelerate progress, different non-Governmental commercial enterprises are taking an active interest in this subject, a departure from state-owned entities. These companies’ activities include, but are not limited to, space-based remote sensing, direct broadcasting, and research and manufacturing in microgravity environments.
Because of the investment required to execute such activities, as well as the substantial commercialization of such businesses, the companies are always concerned about their property, both material and intellectual. Collaborations between private and state-owned corporations can be seen struggling because creating these technologies requires significant investment. Their contract clearly states that the technology given would be recovered without duplication or misuse in the future. This safeguard motivates corporations to invest more in the advancement of space technology.
Recently, globalization in space activities is another emerging factor for the need of IPR in space. With the help of International Space Station (hereinafter referred to as “ISS”), an increasing number of satellite launches are being carried out through international cooperation schemes involving a variety of participants from diverse countries. As a result, a clear, standard, and dependable international legal framework is required. Despite the fact that domestic IP laws are reasonably well synchronized and different national laws use different concepts.
ESTABLISHMENT OF A LEGAL REGIME
The Outer Space Treaty, formed in 1967, is perhaps the foundation of International Space Law. It was intended that outer space research would not result in the claim of ownership of any celestial body in outer space. On the contrary, IP laws deal with the legal problem of the personal business and secure a right holder in opposition to others. As a result, there is a significant level of disagreement between space law and IP laws.
Outer space research and exploration, including that of the moon and other celestial bodies, will be performed for the benefit and in the interests of all nations, irrespective of economic or technological progress, and shall be the domain of all people.
States must foster international collaboration in scientific exploration in outer space, including the moon and other celestial bodies that must stay free. Outer space is not subject to state acquisition by claims of sovereignty, usage or occupancy, or any other way, as per Articles 1 and 2 of the Outer Space Treaty of 1967.
LAWS GOVERNING IPR IN OUTER SPACE
Practically, if we study the problem closely, implementing IP regulations is a must if outer space operations are in constant transformation. With the growth of technology and the introduction of developing technologies for space operations, it is becoming increasingly difficult to evaluate whether some components of IP, such as manufacturing, innovations, and licensing of items such as software, are protected by IP.
Before understanding the law in outer space, the reasoning behind the word “Outer Space” is very important to understand. The region 100 kilometers above the earth space is known as outer space. However, no international treaty has yet set the borders between air space and outer space, but it has been determined via customs and beliefs that the spacecraft does not dip below 100 km and does not fly over that height as well.
MAJOR INTERNATIONAL CONVENTIONS
Currently, even though not directly, but there are only few international treaties which are governing IPR in outer space.
Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property (hereinafter referred to as the “Paris Convention”), which is the essential international treaty in the field of industrial property, does not expressly consider the question of inventions in outer space. However, it includes provisions for creating the national treatment principle, the right of priority and common rules, including certain measures for the enforcement of IPR that all the member states follow.
WIPO Copyright Treaty
The purpose of WIPO Copyright Treaty (hereinafter referred to as “WCT”) is to protect (i) computer programs, whatever may be the mode or form of their expression, and (ii) the compilation of data or other material (hereinafter referred to as “databases”) in any form, which constitute creative works due to the selection or arrangement of their contents.
Article 8 of WTC specifically guarantees the authors’ exclusive right to authorize any transmission to the public of their works, including making these works available to the public in such a way that members of the public may access these works from a place and at a time personally determined by them.
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the “Berne Convention”) is the basic treaty in the field of copyright and related rights. The Berne Convention incorporates clauses defining fundamental concepts such as national treatment, independence of protection, and the idea of unconditional protection, i.e., copyright protection may not be subject to any formality.
Trade-Related Aspects of Intellectual Property Rights Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as “TRIPS”) does not directly address the issue of outer space. In addition to the principle of national treatment enshrined in Article 3, Article 4 of the TRIPS Agreement affirms that any advantage, favour, privilege, or immunity granted by a Member to the nationals of any other country must be extended immediately and unconditionally to the nationals of all other Members.
Outer Space Treaty
Article I of the Outer Space Treaty provides for the so-called “space benefits” clause according to which the exploration and use of outer space should be carried out “for the benefit and interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Further, it states that outer space should be “free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law” and that there should be “free access to all areas of celestial bodies.”
Article II provides for so-called “non-appropriation of space”, according to which outer space is “not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
ENFORCEABILITY OF INTELLECTUAL PROPERTY IN SPACE
Although the term “originality” is not officially defined in the copyright act, it is nonetheless regarded as an important factor for determining whether or not a work is eligible for copyright. Copyright protects original literary and creative works. When it comes to space operations, the raw data received by these satellites has no copyright value. However, after the raw geographical data has been shared, copyright survives in the final processed or value-added data generated.
Another issue that emerges is the question of who is the creator of such work. As is commonly understood, the author/creator of the work is regarded the original owner of the copyright, but it is impossible to ascertain who is the owner of such work, since it is gathered by a computer (earth observation satellites) without any human presence in outer space.
A trademark’s primary purpose is to safeguard the company’s goodwill connected with its products and services. To act as source identification in the marketplace, trademarks should be distinct and exclusive. Trademarks can also be words, images, colour combinations, and other symbols. There are not too many issues with trademarks and outer space. On the contrary, the trademark would not be able to prevent infringement in space for long.
If an invention is unique and novel, it gets awarded a patent. Patent law typically grants the inventor exclusive rights to use, develop, and sell a patented invention for a predetermined period of time. The whole scientific procedure for collecting raw data from space using a Remote Sensing Satellite has been trademarked. Every remote sensing satellite utilises an individual and private approach and technology that is thus patented. When it comes to space patent law, issues arises when an innovation is exploited or infringed upon.
Since long, outer space activities are linked with high-tech innovations and complex research, but IPR recognition for these activities is new, and India, like many other nations, is yet to implement space laws or incorporate space-related elements in its domestic IPR framework.
However, the biggest barrier to reconciling space law with IPR is that space law is part of international law, therefore it is universal and uniform for all countries, but each country has its own IP system. There is a lack of legal clarity and a single standard regulation in the field of space IPR. Law contains mechanisms for compliance, which are now lacking in the case of space IPR concerns.
A clear, concise and reliable international legal framework would make it easier to maximize the collaborative use of public and private resources in space technology and the development of all nations.
– Team AMLEGALS assisted by Mr. Aum Purohit (Intern)
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