INTRODUCTION
Outer space or space refers to the areas beyond our planet’s atmosphere. With the advancement of space technologies, including reusable rockets, deregulation of space flights, a sharp rise in economic activity in the space industry has been observed globally. Launching of new space programs and the growth of the private sector space travel have added to the development of the industry.
A major shift has been observed in recent times, owing to the rise of private sector companies like Blue Origin, SpaceX and Virgin Galactic, in space related activities. Thus, activities of space development have moved on from mere exploration to those of commercialisation.
The domain of space has been an open resource for all countries. As such, the United Nations Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 (Outer Space Treaty) specifically establishes that outer space, and the celestial bodies present in it cannot be subject to any national jurisdiction. However, countries are allowed to continue to assert their rights over the objects, such as satellites, which they launch into space. Since the launching country exercises jurisdiction and control over the objects launched into space, by extension, the same control would also be exercisable over the intellectual property created by these space objects.
CURRENT INTERNATIONAL FRAMEWORK GOVERNING OUTER SPACE
The major legal framework governing space-related exploration and activities is contained in international law. These include
- UN Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967
- UN Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968
- UN Convention on International Liability for Damage Caused by Space Objects, 1972
- UN Convention on Registration of Objects Launched into Outer Space, 1975
- UN Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979
- The International Space Station Intergovernmental Agreement, 1998
- UN Committee on the Peaceful Uses of Outer Space Guidelines, 2019
By virtue of these treatises and conventions, there is a creation of a ‘quasi-jurisdiction’ for countries to assert control over their space objects, personnel and intellectual property. However, their adequacy in the modern scenario, where space activities are not confined to merely exploration, but commercialisation, is debatable.
In the IP domain, there is a complete absence of any legal framework governing intellectual property as only the legal status of physical property is discussed in the international framework.
SECURING INTELLECTUAL PROPERTY IN OUTER SPACE
Space exploration is no longer an undertaking only for governments. As mentioned previously, there is immense commercial activity being undertaken with global cooperation between the private and public sector.
Pharmaceutical companies have already been undertaking research and development activities on the International Space Station (ISS) for drug development. In the near future, they will also attempt to obtain registration and patent protection of their medicines/research in order to be able to commercialise and monetise the same. Several companies are exploring avenues of commercial space travel, developing branding for the same. Further, in the context of copyrightable works, such as images, information databases, etc., are being created by space objects or personnel.
While protection of copyright is possible by subjecting the creation to the IP jurisdiction of the country to which the author belongs, it is not so simple in the case of inventions or trademarks created in outer space. In case of infringement of IP rights due to space-related activities, the enforcement of rights should ideally be governed by the law and jurisdiction applicable to the space object. However, if the ownership of the space object is not easily determinable, it would fall to the parties to the dispute to agree on the jurisdiction they shall be subject to.
There are two main issues of securing and enforcing intellectual property that may arise in the future. Firstly, when some IP is developed on Earth but utilised in space, whether an infringement of that IP in space by an unauthorised user would still be amenable to national jurisdictions? Secondly, if an intellectual property is created in space, how would the same be protected and enforced on Earth, specifically when the property holds significant commercial value?
FOSTERING INTELLECTUAL PROPERTY PROTECTION IN SPACE COMMERCIALISATION
Outer space as a resource has immense untapped potential for commercialisation, and the same has been recognised by various private businesses, in areas such as commercial space travel, satellite-based communications and other such technological advancements which are necessary for human progress. Hence, it is the need of the hour for governments and international bodies, such as WIPO, to discuss the creation of a legal framework to extend IP protection to space.
This is necessary because, in the absence of adequate IP protection and avenues for commercialisation, private companies will lose incentive to continue investing in space activities. This would ultimately lead to a stifling of development in the industry.
- Creation of new treaties for the protection and enforcement of IP in space
Similar to the existing treaties governing physical property, international organisations can consider the implementation of a new treaty specifically governing intellectual property. This would allow for the enforcement of a single uniform system of IP protection which all nations can abide by, ideally administered by WIPO. Additionally, specific bodies for dispute resolution can also be set up to adjudicate any disputed arising between parties, employing methods such as international arbitration.
- Extending the scope of existing treaties to govern IP-related space activities
Although ideal, the process of drafting, adopting and ratification of new treaties is a slow and tedious process. However, the need to implement a legal framework governing outer space is urgent. Hence, as an initial step, the current treaties of international law governing space objects, can be amended to extent their scope even over intellectual property developed in space.
- Extending the scope of national legal frameworks to govern IP in space
Expanding on the prospect of widening the scope of current international frameworks to govern space IP, even the scope of national IP regimes can be permitted to govern IP in space. Since space objects or personnel are subject to the jurisdiction of their country of origin, the intellectual property created by these space objects or personnel can also be governed by the same national IP frameworks as their author or creator or inventor.
- Employing contracts to govern and protect IP in space
In the absence of adequate international legal frameworks, contract have emerged as the primary mode of securing intellectual property in commercial space activities, especially in public-private partnerships. Contract-based protection and enforcement is the most convenient and desirable mode of IP protection today, as it can be implemented easily even in cross-border transactions. The insertion of specific clauses discussing the ownership, protection and enforcement of intellectual property is key. Further, contract-based IP protection is also flexible enough to govern all forms of intellectual property from trademarks to patents.
CONCLUSION
The rapid commercialisation of outer space presents a pressing need for a robust legal framework governing intellectual property rights. While international treaties provide some guidance on jurisdiction over space objects, they fall short of addressing the complexities of IP ownership, enforcement, and infringement in space. With private enterprises actively investing in space-based research, satellite technology, and commercial travel, the lack of clear IP protection mechanisms may discourage innovation and investment.
To foster sustained growth in the space industry, governments and international organisations must work towards a comprehensive legal structure. This can be achieved through the creation of new treaties, amendments to existing legal frameworks, and the extension of national IP regimes to space activities. In the interim, contractual agreements remain the most effective tool for securing IP rights in outer space, particularly in public-private collaborations.
Ultimately, as space continues to evolve from an exploratory frontier to a commercial hub, a well-defined IP framework will be crucial in balancing innovation, investment incentives, and legal certainty. Establishing such protections will not only encourage technological advancements but also ensure fair competition and equitable access to space-related commercial opportunities. The future of space law must therefore embrace the challenges of IP protection to sustain long-term industry growth.
Written by Varshika, Legal Intern at Intepat IP
