INTELLECTUAL PROPERTY AND ITS RELEVANCE IN OUTER SPACE
With the increasing technological advancement, no area has been left unexplored. Outer space is one of such areas which is constantly being studied about. Outer Space refers to that area that exists beyond east and between celestial bodies. However, Intellectual property rights in this area have come into the picture recently. It is relatively recent when these advancements have gotten more private and commercial. The world has now started to understand the significance of these safeguards and protection, therefore; the demand for it has grown rampantly.
Outer Space and Intellectual Property Rights
Privatization and commercialization in this area has been increasing recently and these organizations are very conscious of their tangible and intangible rights. The government agencies are now collaborating with private agencies to conduct research in relation to outer space. Therefore, the protection of intellectual property rights is imperative to encourage the participation of private entities in this regard. 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.
The rights that can be protected under the IP laws are as follows:
With the Patent Cooperation Treaty (PCT), it has become convenient to obtain patent is different jurisdictions also, but the situation is still unknown for territories like space. The aspects that need to be taken into consideration by the applicant of a patent for technology in space are:
a) The territorial jurisdiction of technology prior to space
b) The control point of technology
Article VIII of the Outer Space treaty resolved this issue. It 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. Therefore, when a technology has been invented in a particular nation and then launched in space, it is easier to determine who has the rights over such technology.
The issue arises when the technology is not invented in any particular nation. There are further two more scenarios that should be looked into:
a) When the technology is invented in space and applied by a nation
b) When the technology is invented in space and applied in space
For the first scenario, it is still easier to decide as to who will have the right over the technology. In this case, the invention can be registered by the inventors in the country where they wish to use it further. It can be registered in the patent office of the country whose resources have been used to formulate the technology or in the country where the inventors belong to.
To determine the right over technology under the second scenario is very tricky. In the case when the technology is not only invented in space but also applied in space, the chances of infringement are extremely high. Usually, the infringement of a patent is determined by the market analysis of the same. If a product or process which is already patented is found in the market, it can be figured out as to who has infringed the patent. The same practice cannot be done to keep a check on infringement when the technology is being applied in space itself.
It is suggested to resolve this issue by deciding the jurisdiction as per the nationality of the inventor. As easy as it seems, there are still shortcomings attached to it. What will happen if the inventors belong to two different nations? How to decide the patentability of the invention then? These are a few questions that are still unanswered and needs to be looked into.
There has been advancement of technology in satellite transmission and reception. With the increasing advancement, the protection of satellite transmission and reception has become a matter of great significance. To ensure that these transmissions are protected from unauthorized interceptions have been a concern internationally since 1960s. International communications law, as embodied in the International Telecommunications Convention and the Radio Regulations of the International Telecommunications Union, does not appear to provide sufficient protection for copyrighted material transmitted by satellite. Though, it is required by the member states of the above conventions to keep some telecommunications secret as per Article 22 of the Convention and Article 17 of the Regulation. Existing international copyright agreements - the Universal Copyright Convention (UCC), to which the United States adheres, and the Berne Convention for the Protection of Literary and Artistic Works--were not drafted to take into account unauthorized interception of satellite transmissions. To deal with these deficiencies, Brussels Satellite Convention was formulated.
The information that is specifically known to an entity which is used by that entity to obtain economic benefits and efforts are made to maintain the secrecy of such information is known as trade secret. The entities that conduct the research on their own without any aid from other entities in relation to space technology can resort to registering this information as trade secret. This information can be protected under the trade secret.
Currently there are no laws for trademark protection in the outer space. Trademark refers to protection granted to the names and logos of brands. It is done so as to protect someone else from using a brand name or logo falsely and deriving profits out of it. Trademark protection can be obtained once the space tourism industry becomes feasible and trade and commerce increases in outer space. In that case the billboards and the space objects employed in space will carry marks or logos. These marks or logos will need to be protected under the trademark regime of that country and the doctrine of quasi-territoriality will apply.
IP and Outer Space Laws
It is only United States of America that provides for an explicit statutory provision which talks about both IP and Space laws. These laws are enacted taking into consideration three main elements in this regard i.e. invention, jurisdiction and territory. As per Section 105 of 35 U.S.C. (Inventions in Outer Space), the provision reads as follows:
(a) “Any invention made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of this title, except with respect to any space object or component thereof that is specifically identified and otherwise provided for by an international agreement to which the United States is a party, or with respect to any space object or component thereof that is carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space.”
(b) “Any invention made, used or sold in outer space on a space object or component thereof that is carried out on the registry of a foreign state in accordance with the 10 Convention on Registration of Objects Launched into Outer Space, shall be considered to be made, used or sold within the United States for the purposes of this title if specifically so agreed in an international agreement between the United States and the state of registry.”
Therefore, if a space object has been registered under the United States registry, it will be governed as per the patent law of US with quasi- territorial effect. This is how USA strikes a balance between suitable IP policies and Space law. These policies are appropriate to protect the interest of the inventors and also encourage entities to lay their hands in this area for research."
As per the ratification of Intergovernmental Agreement, 1988, Intellectual Property Law of Germany is applicable to countries that are members of European Space Agency (ESA). There has been some uncertainty as to how the national law can apply to all the states. It should be noted that, in order to clarify this uncertainty in Europe, the Proposal for the Council Regulation on the Community Patent, issued by the European Commission, provides that the Regulation should apply to inventions created in outer space, which are under the jurisdiction and control of one or more member States in accordance with international law.
There have been other steps taken by the ESA that governs intellectual property laws in the space such as contract regulations etc. It is also known that almost 20 patent applications are filed by the ESA every year for new inventions. ESA has also aimed to protect its program names that will be used for commercialization purposes in the future, through trademarks. An example for the same is Adrianne Programme.
India is a signatory to all the international space treaties which governs the international space law. Even then there is no specific legislation for Space law in India. With the development nationally and internationally, the commercialization has definitely increased. To regulate these activities in a better manner, there is a dire need of Space legislation in India. The space activities in India are diversifying at a rapid rate and therefore, legislation must be enacted in this regard by the Indian Parliament.
Space is such a vast entity that we cannot foresee what all it has to offer us. It is a common heritage of mankind which beholds innumerable opportunities for us to explore. It is only through the collaboration of private and government entities that we can contrive strategies to investigate the space. One of the biggest motivating forces for any venture in advancements and inventions is a law that will protect their rights and grant them exclusive rights over their inventions. The only way to achieve this is by formulating strict intellectual property laws in regard to outer space. Therefore, intellectual property laws must be harmonized with space laws. This harmonized system should comply with other international laws and obligations. Moreover, this harmonized system should be prepared keeping in mind the interest of developing countries. Along with all of this, it must promote moral use of outer space so as to yield results that will benefit entire mankind.