Friday, December 8, 2023

Role of Intellectual Property Rights in Space Law

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By Dev Dutta

The use of technological breakthroughs in outer space to explore, research, and use in an extra-terrestrial environment is not new. Because these innovations have become more of a private or commercial affair rather than a state-run endeavour, problems of Intellectual Property Rights controlling these advancements have just lately come to the fore.

The safeguarding of one’s innovation is critical to one’s success. As the world has come to realize the need for such safeguards, the demand for them has skyrocketed.

The private sector’s engagement in space necessitates significant investment because they provide a variety of services such as fabrication, broadcasting, and supplying material required to launch any type of space vehicle, among others. Then there’s the question of “Does the private sector provide adequate protection for pursuing space activities?” As a result, without strong protection for patents, trademarks, trade secrets, copyright, industrial design, and other IP rights, the private sector will have no incentive to invest.

Therefore, it is critical to recognize Intellectual Property Rights associated with space exploration so that the private sector can actively engage in exploring space.

Outer Space

Outer space (also known as space) is an area of the cosmos beyond the top layers of Earth’s atmosphere. The word is often used to distinguish it from airspace and territorial areas. The Fédération Aéronautique Internationale, on the other hand, has created the Kármán line, at an altitude of roughly 100 km, to define the border between the working definitions of aeronautics and astronautics. Unlike in the past, space research is no longer limited to government entities but has expanded to include commercial entities as well. However, non-governmental agencies’ participation does not mean they are immune from legal liability; Article VI of the Outer Space Treaty of 1967 states that States are responsible internationally for national activities in outer space carried out by governmental or non-governmental agencies and that the State must authorize non-governmental agency activities.

Intellectual Property Laws

Intellectual Property Rights in Space imply that the government is willing and able to protect works created outside of its traditional geographical limits, in space. If the work is economically exploited in Space, the owner of the creation has the right to seek legal action. Furthermore, one of the major problems with IP law’s protection of inventions in space is that its basis was established during the Cold War era when space was an object of interest for states rather than private enterprises inside the nation. On the other hand, intellectual property rights are intended to safeguard the interests of the creator(s). As a result, there is a natural conflict between the concepts of space law and IP laws.

There are at least two components to the policy for preserving IPRs. To begin with, intellectual property protection is intended to encourage human creativity for the public good by ensuring that the benefits derived from the exploitation of the creation will, if possible, inure to the creator himself, to both encourage creative activity and afford investors in research and development a fair return on their investments.

Is there a way to bring IPR and space ops together?

Undoubtedly, intellectual property is necessary for exploring space and contributing to extensive research and development. Several disputes, however, continue to exist. The implementation of any intellectual property rights may be incompatible with the idea of open and equal access to information, knowledge and resources produced from space operations, and may obstruct access to these resources.

Outer space law is now governed by five international treaties. “The Outer Space Treaty of 1967” is the only one that concerns governmental operations in space. The following are some of the treaty’s most important articles:

Article 1 of the treaty stipulates that outer space is open to all governments for usage and exploration. Outer space, in other words, cannot be claimed by a single country. It’s known as “Res-Communis,” which means “public domain” or “public property.”

Article 2 of the treaty: The sovereignty of outer space should not be subjected to any sort of state appropriation.

Article 8 of the treaty deals with the authority and control of a space object, and any people associated with it must remain in the state that registers it.

Whereas national laws regulate intellectual property, international organisations such as the World Intellectual Property Organization (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have succeeded in unifying IP laws to some extent globally. Such harmonisation, however, is insufficient to extend such protection to space-related activities and innovations. The necessity of the hour is to establish a consistent legislative system controlling intellectual property rules in space so that emerging countries can benefit from their innovations rather than being dominated by developed ones. There is a wide range of new IP rights dimensions that can be opened up in outer space, such as the application of territory-based national laws in outer space for the enforcement of rights, entitlement, and ownership in the case of joint activities, compliance with international obligations, and so on. A standard enforcement mechanism, such as that of International Arbitration, must be developed in addition to a consistent legal framework to hear and adjudicate disputes arising from IPR in outer space.

What role does a trademark play in space?

The fundamental goal of a trademark is to preserve the company’s goodwill associated with its products and services. Trademarks must be different and unique to serve as a source identification in the marketplace. Words, symbols, colour combinations, and other symbols can all be used as trademarks. Trademarks for space-related products and services must also be adequately secured to prevent misunderstanding and dissemination, as well as to allow third parties to distinguish one innovation from another. Even though the Space Act is not enforceable outside of the United States, NASA must develop a worldwide trademark portfolio. It is registered in the European Union as well as seven additional countries, including Canada, Germany, Japan, and the United Kingdom. These registrations prohibit the use of the NASA symbol (blue “meatball”), NASA Logotype (“worm” logo), and NASA seal on non-NASA-sponsored items, publications, or webpages.

There is currently no provision for providing trademark protection to any innovations transported into space. Unlike a patent, it is concerned with the reputation and branding of the goods and services in question. Companies involved in manufacturing and commercial upstarts, like SpaceX, Orbital Sciences Corp., and XCOR, would seek to safeguard their invention and reputation in Space. Virgin Galactic is aiming to conduct commercial commerce in outer space, and as a result, companies seeking to exploit this trade will need to obtain trademark protection.

The role of patents in space

Before obtaining a patent for their work, each patent applicant must examine two major factors.

1. The jurisdiction(s) where the technology will be utilised before it is sent into orbit; and

2.The technology’s jurisdiction(s) and related “control” point(s).

Patents given by national governments are essentially territorial, making them difficult to grant in a location where there are currently no borders, such as space. This problem was solved by Article VIII of the Outer Space Treaty, which states that the State (Party to the Treaty) whose registry an object launched into outer space is carried on retains jurisdiction and control over that object, as well as any personnel on board, while in outer space or on a celestial body. The technology’s control point is also held by the state that registered the technology. For patent protection, the patentee must examine either the first or the second aspect, or a combination of both, depending on the space-constrained technology.

Role of Copy Rights in space.

Even though the term “originality” is not defined expressly in the copyright statute, it is nonetheless regarded as an important criterion for assessing whether or not a work qualifies for copyright. Original literary, dramatic, and creative works are protected by copyright. The raw data acquired by these satellites have no copyright value when it comes to space operations. However, copyright persists in the final processed or value-added data created after the raw geographical data has been disseminated. Copyrights can be used to protect satellite broadcast and reception. Since the 1960s, preventing unlawful interception and exploitation of copyrighted material broadcast via satellite has been a global problem. There is a serious deficiency in the same. Although Article 22 of the International Telecommunications Convention and Article 17 of the International Telecommunications Union’s Radio Regulations compel member nations to keep some telecommunications secret, its applicability to satellite signal interception is unclear. Direct broadcast satellite technology might potentially result in copyright concerns. As can be seen, no intellectual property rights can be claimed in Space because it is traditionally viewed as a common legacy of all people, and secondly, individual rights are far from being claimed under the OST, which requires the sharing of the advantages obtained from Space. A person/nation can only have exclusive rights to an object that is launched into space. In instances 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 item. Even though the innovation is registered and protected under the laws of the country in which it is made, the legislation that governs the activities of such an invention is still a huge vacuum.

Countries with IP law Compatible with Space Law

There are specific statutory provisions for the applicability of domestic IPR law to Space operations in the United States Law and the NASA Act. The US Space Bill, for example, extends patent law to outer space, but the NASA Act deems a space item to be nothing more than a “vehicle.” The latter has created a flexible intellectual property strategy that has proven to be highly effective in protecting proprietary interests while promoting industrial engagement in commercial space operations Even the European Space Agency has drafted a set of intellectual property standards, including contract regulations, provisions in optional programme implementing rules, and clauses in international agreements. Every year, the ESA submits around 20 patent applications relating to inventions made by its employees. It has also opted to use registered trademarks to protect the names of its programmes for those that are created and developed with the intention of future commercialization by a business set up for that purpose, such as the Arianne Program.

Although India is a member of all international space treaties, it is no different than most other nations when it comes to establishing its space legislation, namely, it lacks one. With India’s space operations constantly expanding, comprehensive and harmonised space legislation is urgently needed.

Space operations have experienced a massive paradigm change as a result of technological advancements. Implementation of IP rights and safeguarding the rights of the author/inventor/company, etc. in our Space legislation is becoming increasingly important as the number of space missions grows. Any business has an incentive to innovate and create superior technologies since it has exclusive rights to its innovations, which means no one else can use them. Intellectual property rights are the sole means to provide such an exclusive right. As a result, IPR laws must be brought in line with Space Laws for the sake of space travel as a whole.

—Dev Dutta is a 4th year B.A LL.B student of the University of Calcutta

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