Updated: Mar 14, 2021
OVER RESEARCH AND INFORMATION GAINED FROM THE SPACE EXPLORATION WITH THE NON-APPROPRIATION OBLIGATIONS IN OUTER SPACE TREATY
Space technology is considered to be one of the most advanced technological arenas and issue regarding the allocation of intellectual property rights for outer space activities has been gaining grounds in recent years. Since the activities carried out in space or any kind of exploration conducted in the outer-space is considered to be result of intellect, therefore a need for providing protection is recognized under Intellectual property rights. Due to increase of private and commercial activities in the space such as direct broadcasting, exploration and research related to other celestial bodies including moon, acquiring information related to outer-space through satellites or high-flying aircrafts etc, it is pertinent to provide these private agencies some rights and extend a protection in order to promote their further effective participation for conducting researches which will contribute to expand the avenues of space technology.
Globalization of outer-space activities has increased the number of participants from various countries and hence a uniform legal framework is required at the international level. However, one of the issues with the protection for the innovative work carried out in the outer space is that space laws came into existence at the time of cold war era, where the space is considered an object of nation’s interest and no private entity within the nation can claim any rights. The underlying principle has been given a binding value by the treaty on principles regulating the state's activities related to space exploration, also known as Outer Space treaty. The non appropriation principle recognized by the treaty prohibits any pretense of sovereignty over the celestial bodies including moon and are free for exploration. As a result, a great difficulty has been faced in allocation of intellectual property rights in terms of space exploration.
Outer-space treaty and Non-appropriation principle
Outer space is a region beyond the upper layers of the atmosphere of the earth and commonly used as a distinguishing term between airspace and territory. However, the main difficulty arises in demarcating a limit i.e. from where the atmosphere end and space begins. The Fédération Aéronautique Internationale tried to advance a limit between space and territorial location by establishing the Karman line at an altitude of one hundred kilometers or sixty-two miles above the sea limit. Outer space treaty of 1967 also referred as “constitution of space” is a document that tries to establish certain guidelines which needs to be followed by states while conducting any activity in outer-space. Almost all the powerful nations in terms of space technology, as well as non-space going nations, are a signatory of the treaty. So far it has been ratified by 109 nations. The treaty obligates all the government agencies of the member states to carry out activities in compliance with international obligation in the mean course of research and exploration and can be held accountable for any non-adherence to the provided guidelines by governmental and nongovernmental agencies. The provisions related to the property rights are specifically mentioned in Article I and Article II of the outer-space treaty. Article I of the treaty speaks of space benefits. It states that any activity related to space exploration should be in interest of all the countries with any prejudice, irrespective of their degree of technological or economic advancement. It should be in the interest of all mankind. The article contemplates a free and equal opportunity to all the states to undergo research activities in the outer-space provided that, such activities should be in adherence to the International law. Also, a free and fair access to all the surfaces of celestial bodies is also guaranteed under said provision. Article II provides an implicit prohibition on private appropriation. The non-appropriation principle prohibits the states to claim sovereignty over the celestial bodies including moon through occupation or use of the same, especially for commercial purpose. However, the presence of non-appropriation principle does not mean that states have no authority over their own personal launches. Article VI and VIII of the outer space treaty provides rights to the state to acquire authorization, supervision, and jurisdiction over their own launches provided that such object should be registered in that state. The ownership of the object launched is not affected by it being present in outer space or any celestial body. The acquisition of IP rights gives protection to the legal owner by providing a legal recourse in case his or her right has been exploited in any manner. Since the IP rights can be acquired either territorially or internationally, the problem arises when the same has to be interpreted in terms of extra-territorial activities. Thus many a time, difficulties arise when issues regarding applicability of such rights in the outer-space comes into picture. Also, another major issue, regarding the granting of intellectual property rights to the outer space researches and inventions arises due the presence of common heritage principle enshrined under the outer-space treaty 1967 which categorically denies any form of sovereignty over any celestial body including moon. Generally, the intellectual property rights over the intellectual creations present in outer-space and used by one or more states on the earth are regulated by the IP law persisting in the nation in which that object has been assembled. Therefore, cognizance of matters to application of intellectual property rights may be given only to the activities carried out in outer space. Issues related to IP protection in case of space exploration and research activities Intellectual property right are essential for the technological advancement especially for underdeveloped states. It gives legal recourse to the rights of the owners, promotes creativity and provides free access of results in order to create economic prosperity.
Conflicts regarding Copyright protection for outer space activities
Privatization of space activities through intellectual property rights creates conflicts with space treaties activities. Some of the issues are discussed below:
• Outer space communication: Advancement of technology has created opportunities for the states to create and establish efficient communication with the outer space objects launched to carry out research activities. Improved technology has paved a way for the space agencies to transmit and receive via artificial satellites. This transmission and reception from satellites are protected via copyrights. The protection is to be provided to the original broadcasters so that unauthorized interception of the satellite signals can be prevented.
• Direct Broadcasting satellites: Direct broadcasting satellites transmit signal directly to public at large without intercepting with any land stations. Hence, this uncontrollable nature of this broadcast makes it a susceptible threat for the owner of the work that is to be broadcasted. In order to avoid such instances, licensed protection of copyright material, providing royalty to the author, and distribution rights should be given to the original copyright owner is to be done.
Conflicts related to patent protection for outer space activities
• The applicability of patent law in outer space is one of the frequently faced difficulties by the states. While patent protection is exclusively territory-specific, as per the outer space treaty the state by which the object has been launched has the jurisdiction and control over it. The major problem is faced to decide whether each and every nation can enjoy a territorial jurisdiction under Intellectual property rights over the object which has been registered and launched in the space due to the presence of non-appropriation principle which prohibits any kind of private ownership over extra-terrestrial activities. Since there is no explicit, codified international rule in respect to this per se, many a time, international space projects or exploration activities are treated as quasi-territory for the purpose of providing protection under IP rights.
The problem of providing protection through intellectual property rights can only be endeavored by international cooperation. However, due to absence of any uniform legislation the countries with powerful space technology are enjoying the benefits from their creations whereas the developing countries are still struggling. Although the non-appropriation principle is at time propagate a benevolent step towards prohibiting the over-exploitation and privatization of the outer-space, providing protection to innovative work of the inventor is equally necessary. This step will benefit inventors as well as tries to enlarge or challenge the inventions that are already made and will contribute to further technological development.
Author - Somya Tiwari
Student at ILS LAW COLLEGE PUNE.