IPRs in Outer Space : A Brief Review and Future Scope

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The mysteries and immenseness of the Universe has intrigued man like nothing more right since the dawn of time. However, it wasn’t until the Renaissance period that the technological advancements fostered humankind in a new era of science and discovery. The initial boost came from the invention of the telescope. Based only on uncertain descriptions of the first practical telescope which Hans Lippershey tried to patent in the Netherlands in 1608, Galileo, in the following year, made a telescope with about 3x magnification. He later made improved versions with up to about 30x magnification. On 25th August 1609, he demonstrated one of his early telescopes, with a magnification of about 8 or 9, to Venetian lawmakers. His telescopes were also a profitable sideline for Galileo, who sold them to merchants who found them useful both at sea and as items of trade.

Fast forward to the present day in the 21st Century, technological advancements have revolutionized the human race in terms of societal, cultural, economical and scientific influences. A major contributing factor to this has been the emergence of a solid IPRs regime globally. A WIPO report states that, around 3.2 million patent applications, 2.3 million utility models applications, 15.2 million trademark applications, and 1.4 million industrial designs applications have been filed globally alone in the year 2019. And if Earth and its land and its territories were not enough, a space race for IPRs in outer space has already begun !

“I think we are at the dawn of a new era in commercial space exploration” – Elon Musk

Space exploration began in October 1957 when Russia launched its unmanned satellite Sputnik-I into outer space. The United States followed this space venture when at a culmination point, they successfully sent a human being on moon for the first time using the Apollo 11 mission. This led to enhanced developments in this sector thereafter. With growing space explorations and the activities conducted thereby, it became necessary for regulating and effectively carrying out further explorations to support the same with an extensive and abiding International Regime for the same.

IPRs in Outer Space

Intellectual Property Rights in Space essentially implies that a State (Country) is willing and capable of granting protection to creations outside its conventional territorial boundaries, in Space. The protection affords the owner of the creation the right to pursue a legal recourse in the event of the creation being commercially exploited in Space

The Principle of State Jurisdiction over the Space Activities under ARTICLE VIII of OUTER SPACE TREATY, 1967 is used as basis for securing quasi-territorial protection of space generated IPR. Regulatory Action is required in providing Protection for :

Creation and Registration of IPR, including its place of registration. Enforcement Mechanisms with Global Influence for protecting IPR generated and/or used on Earth (like Rockets) and that in Outer Space (like Remote Sensing Data).

Like almost every other innovation, space-related inventions could benefit from protection from the following main IPRs :-

A) COPYRIGHTS

  • The raw data gathered by space satellites including Transmission and Reception of Satellite Data per se Direct Broadcasting Satellite (DBS) as such holds no copyright value. But copyright subsists in the final processed or value added data created after disseminating the raw spatial data. The images sent by these Remote Sensing Satellites are used in weather forecast, environmental monitoring, terrain mapping, etc. and embrace a great deal of copyright value.
  • In the copyright laws of most countries, the threshold of originality that is required to qualify for copyright protection differs. This would imply that a particular kind of spatial database may be granted copyright protection in some countries, but a similar data would not qualify for copyright protection in other countries.
  • Article 22 of the International Telecommunications Convention and Article 17 of the Radio Regulations of the International Telecommunications Union require member states to keep certain telecommunications secret. The raw data generated in the form of images and information from Satellites is enhanced by processing it further with the aid of electronic and other means, which constitutes the Remote Sensing Data that can be subject to IPR protection.
  • For Example data obtained from US Landsat, China – Brazil Earth Resources Satellite (CBERS), etc.
  • Apart from this, according to the current laws, if copyright infringement occurs in a space object, such as a private space vehicle, the State of registry and the launching state could easily be traced and the jurisdiction determined.

B) LICENSING

  • It constitutes licensing of Satellite Remote Sensing Data and Information Products as well but the ownership rests with the licensor. So non-transferable, non-exclusive limited rights are granted to the Licensee about the same.

C) PATENT PROTECTION:

  • The entire technological process applied for collecting the raw data from Outer Space using Remote Sensing Satellite can be patented as an invention. The technique and technology used is unique and different in every remote sensing satellite and is thus patentable.
  • However, problems may occur when an invention is used or infringed in outer space. The national patent laws are applicable only within the territory of the respective State which excludes the extraterritorial domain of outer space.
  • The USA is the only country that has enacted an explicit provision related to inventions in outer space. The USA Patent Act (re. 35 U.S.C.§ 105(2003)) states that any invention made, used or sold in outer space on board a spacecraft that is under the jurisdiction or control of the USA is considered to be made, used or sold on US territory, except where an international agreement has been concluded that states otherwise.
  • Germany has also modified its patent law prior to the signing of an Intergovernmental Agreement (IGA) on the ISS, to ensure that its patent law can be applied to inventions created on board an ESA registered module.
  • Recently, ISRO has successfully been granted the patent of producing Moon Soil.

D) TRADEMARK PROTECTION:

  • The International Space Station Intergovernmental Agreement (ISS IGA) of 1998 was the first international agreement to specify protection of IP as an objective and adopts a traditional understanding of patent, trade secret, and trademark protections.
  • As space tourism develops, trademarks in the context of outer space for such companies (like SpaceX, XCOR, etc. ) will also foster.

Indian Perspective

India, like many other countries, has not enacted a specific space legislation. However, it has played a significant role in adopting the 5 sets of legal principles by the U.N General Assembly Resolutions, which provide for the application of international law and promotion of international cooperation and understanding in space activities. All the areas which directly or indirectly related with space activities under the Indian Constitution fall within the domain of the Union by virtue of a series of entries in List I of the seventh schedule to the Constitution of India. According to the RSDP, 2011, the Department of Space through ISRO holds exclusive copyright over the data obtained through RSS as the data obtained is a literary work made or first published under the direction or control of ISRO. However, a vibrant scope for work awaits in front of the sub-continent in terms of policy planning for IPRs in outer space.