OUTER SPACE AND INTELLECTUAL PROPERTY LAWS

Outer space (often referred to as space) consists of a region of universe beyond the upper layers of the
atmosphere of Earth.. The term is commonly used to distinguish it from airspace and territorial locations.
However, the Fédération Aéronautique Internationale has established the Kármán line, at an altitude of about
100 km (~62 mi), to distinguish the boundary separating the working definitions for aeronautics and
astronautics.1 Unlike earlier times, space research is not restricted to the government organisations, but has
extended to the private players as well. However, the involvement of non-governmental agencies is not in
absence of ascertaining any legal liability; Article VI of the Outer Space Treaty, 1967, provides that States
shall be responsible internationally for national activities in outer space carried out by governmental agencies
or by non-governmental agencies and that the State shall authorize the activities of the non-governmental
agencies.2

Intellectual Property Rights in Space essentially implies that the State is willing and capable of granting
protection to creations outside its conventional territorial boundaries, in the 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. However, one of the main issues with the protection of creations in Space by IP law is that
its foundation for the IP law for Space was laid down in the Cold War era, when Space was an object of
interest for nations, not private entities within the nation. However, intellectual property rights aim to protect the
interests of the owner(s) of the creation. Thence is seen an inherent tension between the principles of space
law and the IP laws.3

The probable intellectual property protections that can be accorded to space technologies are the following, 4

1.Trade Secrets

Entities, which are self-sufficient and can manufacture and operate their space related technology without any
third-party aid, can resort to trade secrets for the protection of their creations. They refer to any information
held within the entity, which can be used in the operation of the entity's business or enterprise and is
sufficiently valuable, to afford an actual or potential economic advantage over the others.

2.Patents

Two main aspects that any patent applicant will have to consider before acquiring a patent for their technology
are

1.The jurisdiction(s) in which the technology is used prior to being launched into space; and

2.The jurisdiction(s) and associated "control" point(s) of the technology.

Patents being granted by the national governments are inherently territorial and thus, it becomes a problem to
grant the same in a region presently without territories, such as Space. This issue was resolved by Article VIII
of the Outer Space treaty which specifies that the State (party to the Treaty), on whose registry an object
launched into outer space is carried, shall retain jurisdiction and control over such object, and over any
personnel thereof, while in outer space or on a celestial body.5 The control point of the technology is also
retained with the State which has registered the technology. Depending on the space bound technology, the
patentee has to either consider the first aspect or the second or a combination of both for the purpose of its
protection.

3.Trademarks

Currently, there is no provision for the granting the protection of trademarks to any inventions sent to the
space. Quite different from patent, it pertains to the reputation and branding of the concerned goods and
services. For instance, companies such as SpaceX, Orbital Sciences Corp. and XCOR engaged in
manufacturing and commercial upstarts would strive for a protection of their innovation and reputation in
Space. Virgin Galactic is attempting to undertake commercial trade in outer space and, as a result, those
willing to exploit this trade will have to seek the protection of Trademarks.

4.Copyrights6

The transmission and reception from satellites can be safeguarded by copyrights. Protecting copyrighted
works transmitted by satellite from unauthorized interception and use has been an international concern since
the 1960s. There is a severe inadequacy of the same. Though 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, their relevance
to interception of satellite signals is uncertain. Such copyright issues can also emerge from the direct
broadcast satellite technology. It was in furtherance of this deficiency that The Brussels Satellite Convention
was formulated.

As is evident, no intellectual property rights can be claimed yet in Space as such as it is seen historically seen
as a common heritage of all of mankind and furthermore the requisites laid down in the OST which mandates
the sharing of the benefits of what is derived from Space, individual rights are far from being claimed. It is only
on an object that is launched into space can a person/nation have exclusive rights over. As earlier stated,
Article VIII of the Outer Space Treaty governs this aspect stating that the launching State has to register the
object and in consequence of it, will have jurisdiction over it. In cases where there are two or more launching
states, the decision is left to the parties to decide and determine which one of them should have jurisdiction
and right over the object. Though the invention is registered and protected under the laws of the nation it is
manufactured in, the law which is to govern the activities of such an invention is still a big blank spot.

COUNTRIES HAVING IPR LAW COMPATIBLE WITH SPACE LAW

It is only in the United States Law and the NASA Act that explicit statutory provisions for the applicability of
domestic IPR law to Space activities exist. For instance, the US Space Bill extends the applicability of patent
law into Outer Space, whereas, the NASA Act considers a space object as nothing but a "vehicle". 7The latter
has successfully developed a flexible intellectual property policy which has worked extremely well to protect
the proprietary interest while encouraging industrial participation in commercial space activities. 8

Even the European Space Agency has drawn up a number of rules governing intellectual property: contract
regulations, provisions in the implementing rules of optional programs, and clauses contained in international
agreements. Every year, the ESA files around 20 patent applications in relation to inventions by its staff
members. It has also chosen to protect the names of its programs by means of registered trademarks for
those programs that are conceived and developed with a view of future commercialization by a company set
up for that purpose, e.g. as under the Arianne Programme. It is the European Union only which plays an
important role in satellite broadcasting, by creating an environment in which trans-frontier broadcasts are not
hampered by legal uncertainties.9

Though India is a party to all international space treaties, it is no different than most other countries when it
comes to enacting a specific space legislation of its own, i.e., it doesn't have one.With Indian space activities
rapidly diversifying, there is a dire need for formulating comprehensive and harmonious space legislation.