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Extra-terrestrial studies is not an uncommon concept, especially with the wide technical advancements, the studies conducted in the field of outer space is ever increasing. Recently, India has been debating that there is a need for a proper space law.
This raises questions regarding how intellectual property laws would govern the technological advancements related to space and in general play a role in the development of a legal protection mechanism for space related activities. The reasoning behind this is that these advancements are becoming more and more commercially explorable and with privatisation (e.g. – SpaceX), protection to innovations in this field is imperative.
To plainly define outer space, it consists of a region beyond the Earth’s Atmosphere or its upper layers (also known as airspace). There is a defining boundary that distinguishes between aeronautics and astronautics (the Kármán line).
Trademarks have been debated for decades when viewed from the perspective of how it will cater to the cosmos, but nothing has been done till date. However, with various countries now travelling into outer space and Earth-orbit hotels, together with moon and Mars cities (Example- Russia, USA, Israel etc.). They have planned that a trademark regulatory structure needs to be implemented now in order to avoid chaos off-world in the near future.
INDIAN PERSPECTIVE: IP AND OUTERSPACE
India’s poition is no different than other countries, the position of IP laws in space-related activities is at the nascent stage in India.
India is a signatory to international treaties such as the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Treaty, among others. Despite this, India’s status is similar, and there is no explicit national space legislation in place.
In order to support the overall growth of space activities in India there is a need for national space legislation and in the light of the same, the government is going to introduce the Space activities bill, 2017 which has been submitted to the prime minister. The bill is proposed with the aim of promoting and regulating the space activities of India and to encourage the participation private business entities in space activities in India under the guidance and authorization of the government through the Department of Space.
Section 25 of the proposed bill deals with the provisions of protection of intellectual property rights created in the course of any space-related activities. But the problem with the provision is that it proposes that the intellectual property right created on board a space object shall be deemed to be the property of the Central Government. What is meant by this is that in essence, if Google were to launch a satellite from India, will it not own the pictures the satellite clicks?
Notwithstanding the move of the public authority to remember private members for space exercises, the bill doesn’t address and secures the interests of the private entities. The bill likewise neglects to manage certain significant provisions like orbital patents, licenses, flags of convenience.
The government’s announcement that private players will be allowed to participate in space operations, as well as the proposed Space Activities Bill 2017, demonstrate the government’s willingness and obvious aim to preserve space IP. Even if there are various complexities and irregularities which need to be resolved, the government’s notice and inclusion of a section on the subject demonstrates its willingness to do so – it’s a start.
NEED FOR DEVELOPMENT IN INTERNATIONAL TREATIES
An internationally recognized legal framework managing intellectual property in outer space activities is urgently needed. Given that the 1967 Outer Space Treaty, the 1968 Rescue Agreement, and other similar accords have already been signed by the majority of government agencies, expanding the scope of such treaties to include intellectual property rights would be extremely helpful. Along with it, countries should implement appropriate national space legislation that incorporates the issue of intellectual property in space, in accordance with international conventions. In addition, the Madrid Protocol can be expanded to include issues from other worlds.
A new convention can be added to the WIPO Madrid Protocol, which presently has over 106 signatories (that would amend the accession process as set out in Article 14 to allow these areas to become jurisdictions). Likewise, a new treaty may be enacted anywhere along lines of the ISS Intergovernmental Agreement 1999’s IP sections, or the incumbent treaty could well be altered to include intellectual property provisions of the world.
It is high time that an international treaty is adopted by the members of the world community which covers the scope of protection for intellectual property in space activities and simultaneously provides enforcement mechanisms to protect from infringement, the rights of the owner of such intellectual property.
Given the large body of existing outer-space, physical property law, which includes UN agreements and declarations as well as national government agreements and legislation, these could serve as the foundation for outer-space trademark regulation, and could even be combined with national laws, international custom, international treaties, and dedicated international organisations to establish a means to protect IP related to space activities. There is a dire need to build at least a rudimentary trademark framework for Earth’s orbit, the moon, and Mars as we enter the new roaring twenties of the twenty-first century. The question of how the world’s governments would unite behind any plan is likely to be a contentious political issue.