I. ABSTRACT
The exploration of outer space, driven by human curiosity and necessity, has evolved into a domain hosting artificial satellites and various commercial endeavors. While nations have established systems to protect intellectual property on Earth, the silence regarding such protection beyond our planet poses challenges. Space law operates extraterritorially, in contrast to the territorial nature of Intellectual Property Law. Collaborative space missions between nations present issues of joint ownership and shared responsibilities, complicating the application of territorial intellectual property rights in outer space. The absence of a legal framework exacerbates conflicts between intellectual property and space law, hindering advancements in space technologies. It becomes essential to harmonize legislation to resolve these issues and set uniform rights and obligations for the protection of intellectual property in space-related activities. To support the joint use of public and private resources in space technology, changes to the current space law are required. This will allow for a more simplified and globally compliant framework for intellectual property rights.
II. INTRODUCTION
In the cosmic panorama of the twenty-first century, the tussle between the jurisdictions over the innovation of the countries continues to unfold not only on Earth but also in the outer space. Aerospace has been at the heart of an intense competition between many countries to gain world supremacy.[ii] The dynamic relationship between academics and research organizations remains a major factor in the advancement and development of the field.[iii] However, with the recent proliferation of private entities in the space sector, there has been a bombardment of innovations and discoveries. A wide range of technologies, including propulsion, robotics, fabrication, materials, communications, and autonomous systems, are being developed by players in the commercial aerospace sector. The private sector has also pioneered reusable orbital class rockets, robotic spacecraft with asteroid redirection capabilities, satellite internet constellations, and autonomous electric vertical take-off and landing planes.[iv] This has led us to a Gordian knot in the form of a complex question of who can rightfully claim this extraterrestrial space as their own.
Intellectual Property Rights (IPR) serve as a cornerstone in supporting and assuring a continually growing intellectual community and technological progress. Although the role of IP in space mirrors its role on Earth, the consequences of its implementation in space might be significantly worse. A dysfunctional IPR regime in space not only has negative social and economic effects but also makes space exploration and colonization less feasible and delays the day when these goals will be accomplished.[v] The hurdles encompassing IPR in outer space include manufacturing and use of patented inventions, along with the determination of the author, and the use and licensing of copyrighted products, such as software and spatial data.[vi] The assertion and enforcement of IP rights face formidable obstacles within a legal framework that is resistant to change, hindering the establishment of a robust business dimension in space.[vii]
III. PATENT EVOLUTION: FROM FIRST-TO-INVENT TO FIRST-TO-FILE
The US transitioned from the first-to-invent to the first-inventor-to-file patenting system in 2013. Before this change, the US lacked a formalised method for resolving patent priority disputes, unlike England, which had a history of patent issuance under the Statute of Monopolies.[viii] The Statute allowed patents for new inventions, protecting the rights of the first true inventor, even for imports. Common Law Courts expanded this protection to include importers. Before the adoption of the first-to-invent rule, patent disputes were informally resolved. The shift marked a transformative chapter, establishing a foundation for IP law. Priority was determined by two main steps: thinking of the idea and reducing it to work, with the official date being the conception. Filing patents or building prototypes demonstrated progress, proving priority even if someone filed before completion. In cases of conflicting claims, the first filer gained a temporary advantage, and the US patent office determined the actual inventor through interference proceedings, considering factors like idea conception and effort invested.[ix]
In a different vein, under the First-to-File system, the individual who submits the patent application first gains eligibility for the patent related to a particular invention, irrespective of when the actual invention took place. In this system, the timing of filing the patent application takes precedence over the chronological order of inventiveness. This means that even if someone else conceived the invention earlier, the person who officially files for the patent first is granted the patent rights.
Early actors in US aviation, notably Clement Ader and the Wright Brothers, recognised the strategic importance of patent protection.[x] The race to pioneer aviation technology and secure patents, evident since Ader’s 1890 patent filing, culminated in the Wright Brothers obtaining a patent for flight control in 1906. The subsequent legal battles over patents, including the establishment of a cross-licensing framework, aimed to solidify their control over aircraft production. These measures, driven by numerous lawsuits, ensured a “fair and reasonable” distribution of profits among patent holders, preventing the aviation industry from being impeded by prolonged legal disputes.[xi]
The global landscape of IP in space exploration is marked by a rift between nations opting for either a first-to-inventor or first-to-file system. This divergence poses intricate challenges, particularly in joint missions where registration complexities arise. The intrinsic nature of IP, relying on comprehensive disclosures as prior art, becomes impractical in the extraterrestrial domain. Once an object is in space, it surpasses the boundaries and protections of any single terrestrial market or patent jurisdiction. Consequently, companies are compelled to seek patent protection in every country where a competing space object might be registered—a process that can be both financially burdensome and time-consuming. In cases where a company is unable to secure patent protection in every such country or if a country becomes a potential registration location after the invention has already been disclosed to the public, competitors may exploit flags of convenience to circumvent the company’s patents. Furthermore, the dilemma extends to the competitive dynamics associated with single or joint registrations, raising concerns about potential monopolies.[xii]
IV. JURISDICTIONAL VARIANCES IN GLOBAL IP
Possessing IP rights introduces various proprietary concerns that may lead to disputes, encompassing aspects such as initial ownership, creation, existence, content, limitations, exceptions, and transferability. Different nations employ distinct choice-of-law rules when addressing these proprietary issues. For example, it is controversial which choice-of-law rule should be applied in a case relating to initial ownership of a right, whereas other proprietary issues are far less controversial and tend to be governed more universally by the law of the protecting country.
Traditionally in common law countries, such as England and the US, a party’s interest in property is determined by the situs of that property. Since “the essence of an IPR is the owner’s right to take action to prevent others from engaging in certain types of activity in a given territory”, it is reasonable to infer that a patent or copyright “is situated in the country whose law governs its existence.” Even though patents and copyrights are intangible, their situs is inextricably related to the jurisdiction where their existence and enforcement are mandated by legal systems. The foundation for the development, registration, and protection of these intellectual property rights is provided by national laws and regulations. Reflecting the territorial basis of intellectual property rights, enforcement measures against infringement and remedies for violations are inextricably linked to the laws of the nation where the infringement occurs. International accords help to provide cross-border protection, but national sovereignty still serves as the foundation. Different countries have different registration requirements and procedures, which strengthens the link between national legal frameworks and intellectual property rights.
The US Restatement (Second) of the Conflict of Laws[xiii] dictates that the applicable law in the US is determined by the country with the “most significant relationship” to the matter. In Itar-Tass Russian News Agency v Russian Kurier, Inc., [xiv] where unauthorised reproduction of Russian-language content occurred in New York, the Second Circuit applied the 2nd Restatement’s approach. Considering the origin of the works and their Russian authorship, the court ruled that issues of initial ownership should be resolved under Russian law, as Russia held the most substantial connection. In Bridgeman Art, Inc. v Corel, Inc.,[xv] a UK-based company’s copyright infringement claims against a Canadian entity involved a dual consideration of UK and US law. The court aligned with Section 104A of the US Copyright Act,[xvi] applying UK law for questions of copyright eligibility due to the UK’s significant connection to the works, while addressing infringement allegations under US law, reflecting the incident’s occurrence in New York. This decision aligns with Section 104A, emphasising the source country’s law for determining ownership in restored foreign works.
However, contrary to the lex originis approach in the US, most European countries, including the UK, apply the law of the protecting country to matters of initial ownership. The legal framework of the country providing protection is also a factor in patent-related cases. Matters relating to the acquisition, scope of transferability and termination of patents, as well as initial ownership, are governed by the law of the country for which the protection is sought. This leads to the law of the country of registration. The European Patent Convention includes a special choice-of-law rule in the case of an invention devised during employment. In these circumstances, Article 60 EPC[xvii] identifies the applicable law as the law of the country in which the employee is mainly employed.
The Indian Patents (Amendment) Act, of 2005[xviii] defines what a “new invention” is. The definition of invention and inventive step makes it clear that an existing knowledge or thing cannot be patented. Discovery is excluded from patenting subject to section 3, unlike the practice of granting patents for discovery in the US. It means that discoveries made in space are patentable in the US if the discovery leads to a solution to a problem and the same is non-patentable in India. In the common English language, the expression “discovery” refers to “the act, process or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or unrecognized.” Discovery essentially refers to finding out something that already exists in nature but was previously unknown or unrecognised. Therefore, unlike “invention” which refers to a new product or process involving inventive steps and capable of industrial application[xix], section 2(l)[xx] defines “new invention” as technology not previously disclosed or used globally before the patent filing. The query pertains to patent eligibility for a novel form of a known substance in outer space, considering its prior art status. Section 2(ja)[xxi] provides that “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art. Indian patent law currently lacks protection for space discoveries, even if unknown to humans before discovery. Advocates for an exclusive space regime suggest incorporating provisions safeguarding remote sensing data and inventions by Indian astronauts.[xxii]
V. LEGAL AMBIGUITIES AND OPPORTUNITIES IN THE PRIVATIZATION OF OUTER SPACE
The privatization and commercialization of space activities have dramatically altered the legal landscape concerning IP rights in outer space. Companies like Virgin Galactic, SpaceX, and Blue Origin, are actively participating in a spectrum of space ventures, spanning from space tourism to satellite deployment and lunar exploration.[xxiii] This shift has introduced both challenges and opportunities in the domain of IP protection in space. One of the major issues is the absence of explicit guidelines on property rights within the prevailing legal framework of outer space law. The lack of specific provisions for private enterprises in international law raises questions regarding jurisdiction, liability, responsibility, funding, and the safeguarding of IP in the context of space activities.
Despite the existence of the Outer Space Treaty, a legal vacuum has been created since it does not comprehensively address the involvement of non-governmental entities. Article VIII of the Treaty grants jurisdiction and control to the state from whose territory an object is launched.[xxiv] The treaty does not explicitly define the scope of “national activities” as well. This ambiguity raises questions about the liability of private companies and whether the registering country is accountable for their actions. Furthermore, the Registration Convention of 1967 mandates the registration of spacecraft with the United Nations, emphasizing the role of nationality in determining jurisdiction.[xxv] While the convention establishes the liability of the launching state, the applicability of national legal regimes to private actors in outer space remains unclear.
VI. CHINA’S SOARING SPACE PROGRAM: PATENTS, R&D, AND GLOBAL COMPETITIVENESS
China’s space program, which was started in 1958, has grown significantly despite obstacles encountered during the Cultural Revolution and The Great Leap Forward. With more than 120 active ISR and remote sensing satellites, China is currently the world’s second-largest satellite operator. In addition to being a scientific marvel, the program is also highly significant politically and culturally, supporting President Xi Jinping’s goal of a strong and wealthy China. The recent advent of China’s dominance in the aerospace sector is evident in its patenting statistics, boasting 81% of total innovations in the field.[xxvi] The sheer volume of patents not only demonstrates China’s commitment to R&D but also raises concerns about fair competition and the protection of IPR.[xxvii]
Elon Musk, the founder of SpaceX once said, “We have essentially no patents in SpaceX. Our primary long-term competition is in China — if we published patents, it would be farcical, because the Chinese would just use them as a recipe book.”[xxviii] This cautionary statement about SpaceX’s lack of patents reflects a broader sentiment within the industry. The impression that the theft of Western technologies is a quick cut to this lofty aim stems from the country’s strategic focus on catching up to the US militarily and economically.[xxix] China’s vast R&D endeavours are little touched by these publicly accessible patents. Access to the submerged portion is restricted for the rest of the world by their legislative laws, e.g., the Anti-Unfair Competition Law in China[xxx], or contractual (non-disclosure agreements) measures, creating a strong barrier protected by industrial secrets and confidentiality precautions.
VII. CHALLENGES AND SOLUTIONS
Protecting IP in space presents a unique challenge due to the conflict between the principles of patent law and space law. Patent law grants exclusive private rights to inventors, whereas space law views space as the common heritage of humanity.[xxxi] However, the current U.N. Treaties fall short in addressing these challenges. Several solutions can be considered to address these challenges and establish a comprehensive framework for protecting IP in space.[xxxii]
One of the primary concerns is the question of novelty and the possibility that inventions may be shown “in public” before the submission of a patent application, thereby undermining their novelty. For this, Strong confidentiality agreements would guarantee that patent applications are submitted before any material is made publicly available. In addition, concerns about meeting the novelty requirement surface when producing well-known products in a zero-gravity setting. Guidelines or standards in the field of patent law could be devised to tackle this issue, recognizing the distinct environmental circumstances of space as an element that contributes to novelty.
To resolve the issue of territoriality in space, nations are recommended to enact laws akin to the US, providing extraterritorial impact for patent laws beyond Earth, adopting a “flag state” approach. Additionally, collaborative efforts are advised to establish international conventions addressing the extraterritorial application of patent laws in space. This strategy aims to create a uniform framework for IP protection, minimizing enforcement ambiguities and facilitating violation identification across borders. The proposal suggests the creation of an international organization dedicated to developing and maintaining guidelines, standards, and dispute-resolution mechanisms for IP protection in space activities.[xxxiii]
Copyright protection issues in space operations pose problems to authorship requirements and originality, especially regarding data from remote sensing. It is advised to clarify eligibility requirements by establishing precise guidelines for the copyright-protected remote sensing data to address issues. This entails considering elements like the degree of inventive human contribution and differentiating between information that has been processed or analysed and raw data. To guarantee uniformity and clarity in the application of copyright laws across jurisdictions, it is also suggested to establish international standards or guidelines for copyright protection in a variety of space activities.
Moreover, given the speed at which space operations and technology are developing, we must push for the ongoing evaluation and modification of legal frameworks. By taking a proactive stance, it is ensured that national and international regulations are kept up to date, functional, and flexible enough to accommodate new advancements in the ever-evolving field of space exploration and innovation.
In conclusion, the confluence of space exploration and IPR poses a significant obstacle that demands all-encompassing resolutions and global collaboration. The lack of a well-defined legal structure for intellectual property protection in space, in conjunction with the swift expansion of commercial space operations, impedes advancement and intensifies uncertainties. A careful balance between protecting humanity’s shared legacy and promoting innovation through patent rights is needed to overcome these issues. For equal access to space resources, new strategies including robust confidentiality agreements and extraterritorial patent law application are essential. Maintaining the rights of creators while fostering innovation requires clear copyright protection, particularly concerning data from remote sensing. Legal frameworks need to be continuously evaluated and adjusted to accommodate technological changes. We can realise space exploration’s full potential while defending the interests of all parties involved by embracing innovation and teamwork.
[i] National Law University, Jodhpur.
[ii] Questel, IP Trends in the Aerospace Sector 2023, MONDAQ (Dec. 19, 2023), https://www.mondaq.com/france/patent/1403812/ip-trends-in-the-aerospace-sector-2023-.
[iii] Id.
[iv] Graham C. Phero, Robert Greene Sterne & Andrew P. Stevens, The aerospace revolution: development, intellectual property and value, WESTLAW TODAY (Mar. 14, 2022), https://today.westlaw.com/Document/Ifb136003a3c811ec9f24ec7b211d8087/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0&firstPage=true.
[v] Rosario Avveduto, Past, Present, and Future of Intellectual Property in Space: Old Answers to New Questions, 29 Wash. Int’l L.J. 203 (2019).
[vi] Outer Space and Intellectual Property Rights, SELVAM & SELVAM (Feb. 6, 2016), https://selvams.com/blog/outer-space-and-intellectual-property-rights/.
[vii] Avveduto, supra note 4.
[viii] Statute of Monopolies 1624, 21 Jac. 1, c. 3. (UK).
[ix] U.S. Patent & Trademark Off., Manual of Patent Examining Procedure (2022).
[x] Graham Phero, Robert Greene Sterne & Andrew Stevens, Protecting your innovations, AEROSPACE AMERICA (May 2022), https://aerospaceamerica.aiaa.org/departments/protecting-your-innovations/.
[xi] Gilles Seguin & Patrice Cros, Intellectual Property Issues in the Aerospace Industrie, IR Global (Aug. 3, 2021), https://irglobal.com/article/intellectual-property-issues-in-the-aerospace-industrie/.
[xii] Amrita Deshmukh, The Intersection of Space Laws and Intellectual Property Rights: A Narrative for Space Sustainability, THE GLOBAL UNDERGRADUATE AWARDS (2021), https://gua.soutron.net/Portal/Default/en-GB/DownloadImageFile.ashx?objectId=4181&ownerType=0&ownerId=1937.
[xiii] Restatement (Second) Conflict of Law, American Law Institute (1971).
[xiv] Itar-Tass Russian News v. Russian Kurier, 153 F.3d 82 (2d Cir. 1998).
[xv] Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998).
[xvi] Copyright Act of 1976, 17 U.S.C. §§ 101-1332 (2012).
[xvii] European Patent Convention art. 60, 5 October 1973.
[xviii] Patents (Amendment) Act, 2005, No. 15, Acts of Parliament, 2005.
[xix] Patents Act, 1970, §2(1)(j), No. 39, Acts of Parliament, 1970.
[xx] Patents Act, 1970, §2(1), No. 39, Acts of Parliament, 1970.
[xxi] Patents Act, 1970, §2(ja), No. 39, Acts of Parliament, 1970.
[xxii] KD Raju, Issues in Protection of Intellectual Property Created in Outer Space: An Indian Outlook, Current Developments in Air and Space Law 223 (Prof. (Dr.) Ranbir Singh, Prof. Sanat Kaul & Prof (Dr.) Srikrishna Deva Rao eds., 2012).
[xxiii] Avveduto, supra note 4.
[xxiv] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies art. 8, Jan. 27, 1949, T.I.A.S. No. 6347, 610 U.N.T.S. 8843.
[xxv] Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, T.I.A.S. No. 8480, 1023 U.N.T.S. 15020.
[xxvi] Bret Austin White, Reordering the Law for a China World Order: China’s Legal Warfare Strategy in Outer Space and Cyberspace, 11 J. Nat’l Sec. L. & Pol’y 435 (2021).
[xxvii] Phero, Sterne & Stevens, supra note 3.
[xxviii] Dean Cheng, Cyber Dragon: Inside China’s Information Warfare and Cyber Operations (2016).
[xxix] Questel, supra note 1.
[xxx] Anti-Unfair Competition Law of the People’s Republic of China (2019 Amendment) (promulgated by Standing Committee of the National People’s Congress, effective Apr. 23, 2019).
[xxxi] Sajal Sharma & Shashank Pathak, Patenting of Outer Space Inventions: In the Crossroads of Territorial and Outer Space Law, 1 Dharmashastra Nat’l L. Univ. L. Rev. 175 (2022).
[xxxii] Avveduto, supra note 4.
[xxxiii] Tosaporn Leepuengtham, The Protection of Intellectual Property Rights in Outer Space Activities (2017).
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