No Space for Intellectual Property Rights in Space?

Space has thus far been the exclusive domain of the state owned space agencies but with the advent of private players like “Space X”, “ICEYE” and “AgniKul Combustion Pvt. Ltd.” the sector is witnessing ineffable progress and growth, The private commercial space market is predicted to grow at least 41% in the next four years making it a hot spot of private equity and venture capital investments eventually leading to robust innovation in the field. But as the sector expands and attracts private capital various new shortcomings in the existing system  are appearing  and one such  major lacuna that threatens the new found enthusiasm of space exploration is lack of specific legislation for protection of Intellectual Property Rights of the Private Corporations in the field of Space exploration and its associate ventures. 

It is a matter of common sense that private corporations are motivated by profit but if the same is not sustainably protected the encouragement will be lost. This piece attempts to bring forward the major legal shortcomings for the protection of intellectual property rights of corporations in the field of space that tends to make space an unattractive market for private corporations and hinders the collective progress of the industry.     

Is my patent safe up there?

Numerous rocketry companies around the globe are at present in the business of commercial launching of satellites and in the attempt to be more commercially viable and competitive are innovating regularly in the design and development of such delivery systems, for example Space X developed its new Merlin engines which reduced the fuel consumption in turn making them more cost effective. But it cannot be safely said that those highly invested  innovations are completely safe, the inherent right of an inventor/owner to prevent any third party from unlawfully making, using, offering to sale or importing his/her innovation i.e. by way of patenting  is not always protected in the domain of outer space. In regards to the prevalent legislations the chances of infringement of one’s ownership/inventor ship regarding a lawfully owned patent lies heavily due to multiplicity of jurisdiction.  As  space has no geographical boundaries question as to patent laws of which country is to protect the rights of the owner/inventor of the patent is unclear, while  Article-VIII of the Outer space Treaty in consortium with Article-II of the Registration Convention dictates that the jurisdiction of the space object is to be governed by the law of the land in which it is so registered before its launch in space, no clarity regarding the governing law can be ascertained when such object of space is manufactured and launched by one or more  Multinational corporation’s jointly, and while Article-10(3) of the ILA model law and the Article-II of Registration Convention both contemplate in determination of registry of such space object when such co-operation  is undertaken by two sovereign states, nothing is specified when the such co- operation is undertaken by private corporations of various nationalities i.e. MNC’s. Thus making it impossible to seek any legal remedy by the MNC’s or private corporations in case of any possible patent infringement by any other third party corporation or entity leaving the corporations at the risk of financial losses teeming to millions if not billions.  

But the problem does not end there the practice of licensing of patented technology or equipment to third parties has also gained momentum amongst the private players but the question as to the enforcement of the said licensing agreements and the consequences of non-adherence of such agreements  is not discussed anywhere in any law national or international letting various entities whether belligerent states or private companies to most conveniently evade any legal repercussion for non-adhering top such licensing agreements leading to losses in millions for the licensing party.  Even though the Article-6 of the ILA Model law discusses about revocation of Authorization of an operator it does not elaborate if such authorization be revoked in case of non- adherence of any licensing agreement. 

Hard investment does not fetch copyright:

It is another facet of Intellectual Property Right that is daily threated by the lack of proper legislation in the domain of space industry, while private space corporations spend billions of dollars in launching and maintaining satellites that collect RSD (Remote Sensing Data) which is used for research in fields of geography, weather forecasting, and cosmonautic studies of space they often lose the chance of earning back their investment due to a lack of copyright protection. The existing international policy under WIPO does not recognise protection of ‘non-creative databases’ under which category the primary data collected by the satellites are categorised as the data is collected through the method of telemetry and put through auxiliary processing which does not qualify in ‘creative creation’ criteria for copyright protection all while the doctrine of Sweat Brow is completely ignored due to which the private corporations are unable to sale or lease the data so collected by their satellites restricting their revenue streams.   

Some other questions regarding existing space policies:-

  • While international treaties and Conventions like TRIPS and WIPO protect the right of creative and innovative right of individuals and corporations all around the globe they  fail to answer certain questions of morality and security, as such the Article 27.1 of TRIPS agreement which dictates availability of patent rights without discrimination but  considering the highly volatile nature of the space technology and its uses in the military filed would blind abidance of  the above mentioned TRIPS Article be beneficial to any parties state or individual. For Example:  a freely available patented design of a rocket engine can be acquired by a North Korean shell company and then be used to build long range payload delivery devices for the belligerent state.  
  •  Though the governments of respective nations have the supreme right to protect their interests, their duties towards fair and free environment of trade is also in necessity the question as to the extent a government may exert their right in acquiring a certain private property is also necessary. As can be seen in the latest Indian Space Policy, which dictates complete patent right over all inventions made in space by companies of Indian origin and registry. 

Conclusion

Thus in summary one thing can be said that the existing piece meal approach towards the now leaps and bounds growing commercial space sector in protection of their IP rights only discourages further investment and threatens fair competition and growth in the industry while on one hand lack of a specific and unified international legislations create lacunas waiting to be exploited and making losses of the corporations  on the other hand the same tends to threaten the free movement of companies protected from government intervention. The author is of the opinion that no time should be wasted in reforming the existing international treaties and conventions for IPR protection to include space and space related technologies in their language, while also working towards forming a body to register private and government agencies involved in launching and innovation of the field while also bringing the matter of patents availability before the UN Security council in case of requirements so that a smooth and fair approach towards exploration of space by mankind is continued.      

Abir Mukherjee

Abir Mukherjee, B.A. LL.B., is an independent counsel practicing in the district courts of West Bengal, with a keen interest in intellectual property matters.

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