IPR IN OUTER SPACE: ISSUES, CHALLENGES, LRGAL FRAMEWORK

AND FUTURE CONSIDERATION

ABSTRACT
“Space exploration is a force of nature unto itself that no other force in society can rival”

Whenever we hear the word outer space, the words that pop-up in our mind are sun, star, galaxy,
moon and many more. The concept of intellectual property rights plays a significant role in the
development of a nation as a whole. Therefore, in order to encourage the same in outer space,
foremost challenges of implementing the IPR1 in outer space must be solved. The granting
of intellectual property protection to space activities plays a significant role in promoting the
sustainable development of space commercialization. However, the international intellectual
property treaties have not explicitly stated in their provisions the issue of intellectual property
protection in outer space, neither the provisions of the five outer space treaties explicitly address
the legal issue. Such legal uncertainty may discourage States and non-governmental entities from
actively participating in commercial space activities. One worried rationale resulting in such
legal status is the territoriality conflict in theory between the legal apparatus of outer space and
intellectual property. This paper professes to illustrate territorial conflict in theory between legal
regimes of outer space and intellectual property. This system employs space objects as a
connecting factor to link space activities with the existing laws of the State of registry to realize
the motive of intellectual property protection in outer space. The idea behind the making of the
paper is to analyze the issues that arise out of implementing IPR in outer space, legal issues that
may arise and the future consideration of commercialization of outer space and overall
development of the economy.

KEY WORDS - Outer space, Intellectual Property, Commercialization, Outer Space Treaty,
Territoriality.

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STUDY.COM https://study.com/learn/lesson/what-is-intellectual-property-law.html( Last visited- 13 Jan. 2023)
 INTRODUCTION

Space a three dimensional expanse which is unoccupied. Space is a non-gravity field where all
the celestial bodies lie such as planets, stars, galaxies, black holes, sun and what not. Outer space
activities deal with sophisticated technology and require out of the box inventiveness, this
underlines the importance of Intellectual Property Rights in outer space. Taking the future of
space into consideration intellectual property rights is a major concern and many treaties have
discussed this issue such as Outer Space Treaty, 19672; The Moon Agreement, 19793 and The
Intergovernmental Agreements. The statues provided are ambiguous and there is nothing clearly
mentioned about Intellectual Property Rights in Space.

It is evaluated that by 2025, the growth of the space industry will increase by 10% which will
increase to USD 13 Million4. So, why does IPR have a great role to play? Space is now not just
limited to government intervention but can be explored and used by private entities. The
investments done by these bodies are crucial for the advancement of space activities. But, why
will these bodies invest when there is no protection provided to them?

Talking about IPR in space is a complex issue as the ambit of IPR laws is just limited to territory
of land and sometimes air space. The main contentions behind implementing IPR in Outer Space
are Sovereignty and Jurisdiction. IPR are created to protect the infringement of the owner's
intellect within the territorial jurisdiction of any particular state, while on the other hand space is
considered to be a “res communis”.5

The first part introduces the relevance of IPR in outer space activities. The second part deals with
the existing legal framework in IPR laws, what the treaties and World Intellectual Property
Rights Organization has their say. The third part encompasses challenges which are encountered
in implementing IP laws in outer space. The fourth part illustrates the potential of IPR for future
development of commercial activities in space.

2
Outer Space Treaty, Oct. 1967
3
The Moon Agreement, 1979,2nd November
4
BUSINESS STANDARD. https://www.business-standard.com/article/economy-policy/india-s-space-economy-
expected-to-be-worth-12-8-bn-by-2025-report-122101000558_1.html( last visited Oct. 2022)
5
OXFORD REFENCES https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100408305
(last visited-12 Jan. 2023)
Globalization of space activities is another reason for the growing awareness of intellectual
property rights in protection of outer space. Due to international co-operation schemes more and
more space activities are operated. Therefore, need of simple, uniform and reliable international
framework is the need of the hour. Although, national intellectual property laws are well
harmonized but different national laws still apply different principles. Therefore, a uniform legal
regime is required which is going to protect the intellectual property rights in space activities.
Due to the development of space technology, new innovations and business possibilities are
emerging. For instance, with the help of new space technologies the concept of space tourism is
also developing and emerging. New inventions are requiring for patent protection created in
outer space or copyright protection of databases using acquired through space activities. If the
space tourism becomes reality, the protection of trademarks and industrial design in outer space
may also become an important issue.
 RESEARCH METHODOLOGY

For the purpose of study and analysis the author had used the secondary data. Secondary data is
collected from various previously published research papers, internet blogs, Google Scholar,
reports of commission, articles, and Observation. The present research paper is mainly confined
to secondary data as primary research in such a topic is very technical.
 RESEARCH QUESTIOS

1. Whether the sovereignty of the space has been defined and who can claim
sovereignty over space?
2. What is the territoriality of space?
3. Whether there is any provision WIPO which talks about IPR in Outer Space ?
 LITERATURE REVIEW

Isabe Ue Bouvet (November2022) .The issue of Intellectual Property Rights in outer space will
be examined within the first Part, with a focus on Patent Law. The second Part explores the
specific contained in the International Space Station Inter -governmental Agreement, on
Intellectual Property and exchange of data and goods.
Sajal Sharma⃰ &Shashank Pathak⃰⃰. (2020). It is rightly argued, therefore, that intellectual
property rights including patents are bound by a strict territorial approach. This means that
National rules with regard to the intellectual property protection are limited to the national
borders and do not extend beyond them. This situation becomes tricky as this concept of
territorial sovereignty would not be applicable as it is to the space activities. The Outer Space
Treaty of 1967, clearly laid down that outer space is not subject to national appropriation and
free use shall be carried out for the benefits and interests of all countries. It has been pointed out
that the approaches in the terrestrial intellectual property law and the outer space law are not easy
to reconcile.

KD Raju (2019).The paper deduce that the present apparatus are not adequate to deal with
inventions made in space and appropriate amendments should be created to the existing
apparatus to include inventions made in the space. Other facet like, criminal, civil and tortuous
liabilities are not part of this study.
 LEGAL FRAMEWORK FOR IMPLEMENTING IPR IN OUTER SPACE

(1). International conventions relating to intellectual property and outer space.

A. the Paris Convention for the Protection of Industrial Property (hereinafter referred to as the
“Paris Convention”), which is the basic international treaty in the field of industrial Property,
does not expressly consider the question of inventions in outer space. However, it contains
provisions establishing the national treatment principle (Article 2 6 the right of priority (Article
47) and common rules, including certain measures for the enforcement of Intellectual property
rights, which all the Member States must follow.
B.As regards patents; patents granted in different Member States for the same invention are
independent of each other (Independence of patents obtained for the same invention in different
countries). This means that, on the one hand, the granting of a patent for a given invention in one
Member State does not oblige other Member States to grant a patent for the same invention; on
the other hand, a patent for a given invention cannot be refused, revoked or terminated in a
Member State on the grounds that a patent applied for in another member State for the same
invention has been refused or has lost its effect in the latter State. Article 6 provides a similar
rule with respect to registered marks of particular interest with respect to outer space activities is
Article 5 which provides that there is no infringement of the rights of a patentee in the case of:
(i) The use on board vessels of other countries of the Paris Union of devices forming the subject
of the patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when
such vessels temporarily or accidentally enter the water of the said country, provided that such
devices are used there exclusively for the needs of the vessel;
(ii) The use of devices forming the subject of the patent in the construction or operation of
aircraft or land vehicles of other countries of the Paris Union, or of accessories of such aircraft or
land vehicles, when those aircraft or land vehicles temporarily or accidentally enter the said
country.
(2) Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to
as the “Berne Convention”) is the basic treaty in the field of copyright and related rights. As the
Paris Convention, the Berne Convention does not expressly consider the question of intellectual

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The Paris Convention for the Protection of Industrial Property March 20 1883,
7
Supra 6
property rights in outer space. However, it contains provisions establishing basic principles such
as national treatment, the “independence” of protection and the principle of automatic protection,
i.e., copyright protection may not be subject to any formality.
(3) WIPO Copyright Treaty (WCT)
The WCT provides, among other things, for the protection of (i) computer programs, whatever
may be the mode or form of their expression, and (ii) the compilation of data or other material
(“databases”) in any form, which by reason of the selection or arrangement of their contents
constitute intellectual creations. In particular, Article 8 8 assures the authors’ right to enjoy the
exclusive right of authorizing any communication to the public of their works, including the
making available to the public of their works in such a way that members of the public may
access these works from a place and at a time individually chosen by them. This Article is also
applicable to transmissions to and from a spacecraft.
(4) The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement)
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
does not specifically address the question of outer space as such. In addition to the principle of
national treatment in Article 3, Article 4 provides that, in principle, any advantage, favor,
privilege or immunity granted by a Member to the nationals of any other country shall be
accorded immediately and unconditionally to the nationals of all other Members (“most-favored-
nation treatment”). Further, according to Article 27.1, patents must be available and patents
rights enjoyable without discrimination as to the place of invention. Therefore, national law has
to ensure that, with respect to inventions created in outer space, patents must be granted and
Enforceable in the territory in which it applies under the same conditions applicable to inventions
created elsewhere.
B. INTERNATIOANAL PRICIPLES CONCERNING OUTER SPACE
The main body of current international space law is contained in five international agreements:
1. Treaty on Principles Governing the Activities of States in the Exploration and Use
Of Outer Space, including the Moon and other Celestial Bodies (1967 Outer Space Treaty);
2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
launched into Outer Space (1968 Rescue Agreement);

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WIPO Copyright Treaty, 6th March 2002, Art.8
3. Convention on International Liability for the Damage Caused by Space Objects (1972
Liability Conventions);
4. Convention on registration of Objects Launched into Outer Space (1975 Registration
Convention); and
5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979
Moon Agreement).
None of those agreements contains a provision expressly dealing with intellectual property.
However, since it may assist in examining whether the general rules on intellectual property
protection need adaptation or exceptions for the purposes of outer space activities.
Therefore, there is nothing in international arena which basically talks about the implementation
of IPR in Outer Space.
 CHALLENGES OF IPR IN OUTER SPACE

Protecting intellectual property rights (IPR) in outer space presents a unique set of challenges.
The sole challenge arising out of the IPR in outer space is territoriality and sovereignty over
outer space. The absence of a clear legal framework specific to space activities complicates the
enforcement of IPR. Satellite technologies and space innovations often involve international
collaborations, leading to complexities in determining jurisdiction and applicable laws. Basically
the law of IPR deals with the jurisdiction and its applicability in territorial jurisdiction of any
particular territoriality.

Moreover, the vastness and ever expanding of outer space raises issues related to monitoring and
regulating the unauthorized use or reproduction of intellectual property. Due to space exploration
the necessity for standardized and globally accepted regulations becomes imperative to
safeguard the interests of individuals and organizations investing in space-related intellectual
endeavors. Addressing these challenges will be vital in fostering innovation, industrialization,
encouraging investment, and ensuring fair recognition and protection of intellectual property
rights in the evolving landscape of outer space activities.

Additionally, complicating the protection of intellectual property rights (IPR) in outer space is
because of clarity regarding the division of celestial bodies and resources. As space exploration
advances, the basic questions that always arise about ownership and rights over extraterrestrial
materials, such as minerals or elements. The absence of a comprehensive framework for
addressing these issues creates uncertainty for entities engaging in space mining or resource
utilization.

Moreover, the ever increasing advancement of satellite technologies and the increasing
participation of private entities in space activities raise concerns regarding the potential for
intellectual property theft or unauthorized use. Protecting IPR in space requires collaborative
efforts among nations to maintain clear guidelines and mechanisms for resolving problems that
arise out of activities in Space. International agreements and treaties become essential to promote
cooperation and provide a legal foundation for protecting intellectual creations beyond Earth.

In summary, the challenges of IPR in outer space extend beyond jurisdictional complexities to
encompass questions of resource ownership and the need for robust international agreements.
Addressing these challenges will be crucial for fostering a conducive environment for innovation
and ensuring the equitable protection of intellectual property rights in the expansion of space
exploration and its utilization.
 FUTURE CONSIDERATION IN IPR
The future consideration of Intellectual Property Rights (IPR) in space is poised to become a
critical aspect of space exploration and commercial activities beyond Earth. 9 The future of outer
space will be in prosperity if the basic challenges of implementing IPR in outer space will be
solved. As time goes on and humanity ventures further into space, creating a framework for the
protection and enforcement of intellectual property will be required to call innovation,
investment, and sustainable development in the extraterrestrial domain.

The sole significant area of concern is the development of new technologies and inventions in
outer space, ranging from advanced propulsion systems to life-support technologies. Firms and
individuals investing in research and development for space exploration need safety that their
intellectual property will be safeguarded, fostering a conducive environment for progress. Clarity
in IPR regulations for space-based innovations, including patents and copyrights, will be crucial
to providing creators with the necessary incentives to push the boundaries of scientific and
technological advancements.

Furthermore, as space activities turn from predominantly governmental intervention to an

increasing involvement of private entities, the need for international cooperation and
standardization in space IPR becomes evident. Collaborative efforts will be required to establish
harmonized legal frameworks that respect the rights of inventors and creators across different
jurisdictions. This collaboration should also extend to addressing potential conflicts and overlaps
between national and international laws, ensuring a cohesive and equitable approach to space
IPR.

In addition to technology, issues related to resource utilization in space, such as extracting

minerals or mining asteroids from celestial bodies, bring forth complex questions regarding
ownership and IPR. Crafting legal mechanisms to address these concerns, while balancing the
interests of different stakeholders, will be crucial for outer space commercialization of unique
space resources.

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MONDAQ.https://www.mondaq.com/india/patent/1393846/ipr-for-outer-space-activity-clarity-is-a-necessity-for-
its-development-and-draft-space-activities-bill-in-india( last visited-23 Nov. 2023)
Overall, the future consideration of IPR in space necessitates a proactive and collaborative legal
framework which determines the application of IPR in outer space in order to commercialize the
use of outer space, consequently assisting in the development of the economy of the country. ..
 CONCLUSION

The concept of IPR in Outer Space is evolving and is a leading topic in the present world. The
development in the emerging technology and advancement of the modern world necessitates the
use of Intellectual Property in outer space. As intellectual property rights is the unique concept of
securing the intellect of an individual while having the legal framework in the present modern
scenario. The concept of IPR can require two essentials to be met while implementing IPR in
outer space. Intellectual property rights apply according to territoriality and sovereignty. Here,
the question arises who is the owner of the space and outer space comes under which country’s
or state territory. There are many conventions and treaties related to outer space and, also, the
World Intellectual Property Organization didn’t deal with IPR in outer space. Hence, there can
be two challenges which might create hindrance in order to implement the IPR in outer space.
The solution to the challenges possessed by the current legal framework can make an everlasting
impact on the commercialization of outer space related activities and can directly lead to
development and advancement of the economy or country. Additionally, the definition of
territoriality and sovereignty can secure the rights of the developers of intellectual properties.

With the development of technology, space activities have engaged in a tremendous paradigm
shift. With the increase in a space mission, application of IP rights and protecting the rights of
the author/inventor/, etc. in our Space law is the need of the hour.