ISSUES AND DILEMMAS SURROUNDING

INTELLECTUAL PROPERTY RIGHTS IN THE

REALM OF OUTER SPACE

RESEARCH PROJECT

Submitted by: - Submitted to: -

Dewang Shrivastava Dr. Nivedha S.

Roll Number – 19118 Assistant Professor of Law

Rajiv Gandhi National University of Law

2024
 ACKNOWLEDGEMENT

On completion of this project it is my privilege to acknowledge my heartfelt gratitude and

indebtedness towards my teachers for their valuable suggestion and constructive criticism.
Their precious guidance and unrelenting support kept me on the right path throughout the
whole project. I am very much thankful to my teacher in charge and project coordinators
for giving me this relevant and knowledgeable topic.

I wish to express my sincere gratitude to my teacher Dr. Vikram Karuna, for his guidance and
encouragement in carrying out this project work.

2
 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

SUPERVISOR’S CERTIFICATE

Dr. Nivedha Patiala (Punjab)

Rajiv Gandhi National University of Law

Punjab

This is to certify that the Project on Issues and Dilemma surrounding Intellectual
Property Rights in the Realm of Outer Space submitted to Rajiv Gandhi National
University of Law, Patiala, in partial fulfilment of the requirement of the B.A.LLB (Hons.)
Course is an original and bona fide research work carried out by Mr. Dewang Shrivastava
under my supervision and guidance. No part of this project has been submitted to any
University for the award of any Degree or Diploma, whatsoever.

3
 TABLE OF CONTENTS

CHAPTER-I: INTRODUCTION
1.1. Statement of Problem
1.2. Research Questions
1.3. Hypothesis
1.4. Research Methodology
1.5. Tentative Chapterization
CHAPTER-II: SIGNIFICANCE OF IPR IN THE SPACE INDUSTRY
2.1. Intellectual Property Rights
2.1.1. Necessity of IPR
2.2. Space Technology and IPRs
2.2.1. Probable Space IP Proections
CHAPTER-III: IPR PROTECTION FOR SPACE ACTIVITIES: CURRENT SCENARIO
3.1. Relevant International Legal Framework
3.1.1. Principle of Territoriality
3.1.2. Paris Convention
3.1.3. Berne Convention
3.1.4. WIPO Copyright Treaty
3.1.5. TRIPS Agreement
3.1.6. Intergovernmental Agreement (IGA)
3.2. Relevant Domestic Legal Framework
3.2.1. United States of America (USA)
3.2.2. Germany
3.2.3. ESA-Member States
3.2.4. India
CHAPTER-IV: NEED FOR A NEW LEGAL REGIME IN SPACE-RELATED IPR
4.1. Shortcomings of Present Legal Regime
4.2. Space IPR – The Path Ahead
CHAPTER-V: SUGGESTIONS AND
CONCLUSION BIBLIOGRAPHY
 LIST OF STATUTES

Agreement among the government of Canada, governments of Member States of the European
Space Agency, the government of Japan, the government of the Russian Federation, and the
government of the United States of America concerning Cooperation on the Civil International
Space Station, Jan. 29, 1998, 47 ZLW 143.
Agreement on co-operation in the design etc, of the permanently manned civil space station, Sept.
29, 1988, CM 705.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Nov. 15, 1994, 1869 UNTS 299.
Convention establishing the World Intellectual Property Organisation, Jul. 14, 1967, 828 UNTS 3.
Convention for the creation of an international union for the protection of literary and artistic works,
with Additional Article, Protocol and Procès-verbal, Sept. 9, 1886, 168 CTS 185. Convention for the
protection of industrial property, Mar. 20, 1883, 161 CTS 409.
Inventions in Outer Space, 35 USC § 105 (2003).
National Aeronautics and Space Act, 42 USC § 105 (1958).
Treaty on principles governing the activities of states in the exploration and use of outer
space, including the moon and other celestial bodies, Jan. 27, 2967, 610 UNTS 205. WIPO
copyright treaty (WCT), Dec. 20, 1996, 2186 UNTS 000.

LIST OF ABBREVIATIONS

ESA – European Space Agency

EU – European Union
IGA – Intergovernmental Agreement
IP – Intellectual Property
IPR – Intellectual Property Rights
ISRO – Indian Space Research Organisation
ISS – International Space Station
NASA – National Aeronautics and Space Administration
OST – Outer Space Treaty
TRIPS – Trade-Related Aspects of Intellectual Property Rights
USA – United States of America
WCT – WIPO Copyright Treaty
WIPO – World Intellectual Property Organisation
WTO – World Trade Organisation
 CHAPTER-I
INTRODUCTION

Even though humans evolved and grew on the surface of Earth, our imagination and technologies
have known no bounds. Particularly, since the industrial revolution, we have progressed in all fields
at an unprecedented pace. However, the true prowess of human intelligence is nowhere else as
evident as when one studies the advancements made in space technology. We have built powerful
launchers that have not only explored the universe and its mysteries but also brought monumental
changes in daily life technology. Disaster management, telecommunication, education, natural
resource management, agriculture, environmental monitoring, navigation, civil planning, etc., are
only a few of the vast areas that benefit from space technology.
For most of its more than six decades of history, space activities were spearheaded by governmental
agencies. While the National Aeronautics and Space Administration (NASA) led space activities in
the United States of America (USA), the Indian Space Research Organisation (ISRO) was
responsible for the innovations in India. Owing to the enormous investment and liabilities involved,
private parties were limited to contractual roles and never ventured to deliver end-to-end services in
the space industry. However, the last two decades have witnessed a significant shift, with the role of
commercial participants taking priority in most advanced space-faring nations. Companies such as
SpaceX, Blue Origin, etc., have shown impressive growth and achieved remarkable milestones,
including the private launch of astronauts into space. This shift in momentum has also been
accompanied by a shift in space policies in many countries, with laws that encourage private
participation in space activities.1
Intellectual Property (IP) laws are concerned with protecting the intangible creations of the
human mind. The most well-known types of IPs are patents, trademarks, copyrights, and trade
secrets. The primary objective of providing intellectual property rights (IPRs) to human creations is
to stimulate innovations and contribute to technological progress through incentives. Most counties
have dedicated IPR laws that are generally territorial, in accordance with international agreements.2
Even though it is one of the most advanced technical areas, it is only recently that the concept of
granting IPR protection to space technology has attracted attention. Earlier, since almost all space
activities were state-run, the innovations and their profits were also completely state-owned.
However, with the changing frontiers in the space industry with more private participation, IPR
protection for space activities attains more relevance than ever before.

Statement of Problem:
The space industry is going through an extraordinary change with regard to leadership, knowledge

1 Airbus, New Space, AIRBUS (Nov. 14, 2023, 03:37 PM),

https://www.airbus.com/public-affairs/brussels/our-topics/space/new-space.html.
2 World Intellectual Property Organization (WIPO), Understanding Intellectual Property, WIPO (Nov. 14,
2023, 05:09PM), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_895_2016.pdf.
transfer, and priorities. In this context, it is necessary to have a robust legal framework regarding
IPR protection of space activities to support this growth spurt. Therefore, it is of interest the study
the existing international legal system for space-related IPR and whether there is a requirement for a
new legal regime.

Research Questions:
1. What is the significance of providing IPR protection for space activities?
2. What are the various existing legal systems concerned with providing IPR protection for
space activities?
3. What are the shortcomings, if any, of the current legal framework for space activities? If
necessary, how Nov a new legal regime be implemented?

Hypothesis:
It is hypothesised that the present legal framework for granting IPR protection for space activities
has various legal conundrums and that a new legal regime is needed urgently.

Research Methodology:
This research will employ doctrinal and non-doctrinal methods. Primary and secondary sources shall
be used to collect the necessary literature required.

Tentative Chapterisation:
The following is the chapterisation of the paper:
I. Introduction
This chapter provides an introduction to the research problem and an overview of the report.
II. Significance of IPR in the Space Industry
This chapter assesses the necessity and significance of intellectual property rights in the space
industry.
III. IPR Protection for Space Activities: Current Scenario
This chapter explores the existing legal regime of space-related IPR laws globally.
IV. Need for a New Legal Regime for Space-Related IPR
This chapter analyses whether there is a necessity for implementing a new legal regime for
granting IPR to space activities and provides suggestions for the same.
V. Suggestions and Conclusion
This chapter provides the conclusive remarks of the research.
 CHAPTER-II
SIGNIFICANCE OF IPR IN THE SPACE INDUSTRY

Intellectual Property Rights:

Apart from the tangible properties that humans own, we also frequently create inventions through
the intellectual capacity of the human mind. Intellectual property rights give the author of such an
intellectual creation the exclusive rights for exploiting and earning benefits from it. However, this
Nov be limited to a certain territory, time and scope.3
The World Intellectual Property Organisation (WIPO) is a United Nations special agency that
oversees the international IP issues. It was founded in 1967 and has since then produced twenty four
multilateral treaties. According to the Convention establishing the World Intellectual Property
Organisation4 (WIPO Convention, 1967), IPs can include industrial properties such as scientific
discoveries, industrial design, trademarks, service marks, etc., or literary and artistic properties such
as performances of performing artists and broadcasts.5
Necessity of IPR:
Legal rights are very essential for intellectual creations because:
1. It encourages the creativity of the human mind;
2. It encourages the disclosure, publication and distribution of such creations;
3. Providing such incentives increases the motivation of humans to create further advancements,

hence leading to an increase in commercial activity and economic growth. 6,7

Space Technology and IPRs:

Space exploration is an advanced technological marvel. It involves the perfect harmony of a
multitude of subsystems such as propulsion, aerodynamics, structures, avionics, navigation, guidance
and control, etc. A launch vehicle, during its launch, is optimised to overcome extreme vibration,
temperatures, and pressures. Upon releasing its payload at the accurate orbit, continual in-orbit
manoeuvres and long-term data processing follow for years, which eventually lead to social
improvement. Space technology helps in remote sensing, education, daily-life technologies and also
helps us understand the universe better.8
Even though technical inventions in the space industry has been happening for decades, it is only in
the recent past that IPRs of space technology started receiving sufficient attention. This has been

fuelled by the gradual shift of space exploration into a commercial affair from state-run activity.9

3
RAHUL J. NIKAM, SPACE ACTIVITIES AND IPR PROTECTION – NEED FOR A NEW LEGAL REGIME, 1 (2013).
4
Convention establishing the World Intellectual Property Organisation, Jul. 14, 1967, 828 UNTS 3.
5
Sankalp Jain, Intellectual Property Protection in Outer Space Activities, SOCIAL SCIENCE RESEARCH NETWORK (Nov 20,
2023, 05:18 PM), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820625.
6
RAHUL J. NIKAM, supra note 3, at 1-2.
7
Diganth Raj Sehgal, Need for Intellectual Property Rights in Outer Space, IPLEADERS (Nov 20, 2023, 05:22 PM,
https://blog.ipleaders.in/need-intellectual-property-rights-outer-space/.
8
RAHUL J. NIKAM, supra note 3, at 4-5.
9 Anwesha Singh, Intellectual Property Law and the Outer Space: A Promising Future Ahead?, MONDAQ (Nov 23, 2023, 05:42
PM), https://www.mondaq.com/india/trademark/762020/intellectual-property-law-and-the-outer-space-a-promising-
Hence, there is a strong requirement for effective IPR more than ever before. With private companies
investing significant amounts into this, a proper legal regime will ensure fair competition which is
essential for the private market.10
Based on the degree of participation of private entities in the space activity, commercialisation can be
of the following kinds:
1. Privatisation: The ownership of the activity is completely by the private entity;
2. An exclusive government technology can be marketed to the private industry;
3. The technology Nov be developed privately but with significant state assistance;
4. The technology Nov be developed privately but with little or negligible state assistance.
Irrespective of the degree of collaboration between the public and private sectors, there is always
substantial technical and financial risks involved. Space IP laws should therefore be tuned such that
they do not lead to direct or indirect adverse consequences on national security or interests.
11
Probable Space IP Protections:
Some intellectual property protections that Nov be granted to space innovations are as follows:
1. Trade secrets: This is a process or practice that is not released publicly and gives the company

an advantage over its competitors.12 If any space companies have become self-sufficient
enough that they can manufacture certain products without any external assistance, they can
obtain a trade secret protection for the same.13
2. Patents: An inventor who has been granted a patent by a sovereign authority has the exclusive
rights to the process, design or invention for a certain duration provided certain

comprehensive details are disclosed.14 Two aspects crucial for the functioning of a patent in
space technology would be the jurisdiction in which the invention was used prior to launching
and its future control points. This creates a conflict since the patent granted by a national
government is territorial but outer space is not. This was resolved in the Outer Space
Treaty (OST) of 196715 in which it was clarified that whichever State under whose registry
the product was launched, it will retain control and jurisdiction.16
3. Trademark: This is a unique sign that distinguishes certain goods or services from other
products in the market.17 Private space companies that will be aiming to establish their

capabilities in a unique area will prefer having a trademark of their own.18

future-ahead.
10 Niraj Kumar, IPR Regulation in Space Cross Country Analysis, IJNIET (Nov 20, 05:45 PM),
http://www.ijniet.org/wp-content/uploads/2020/02/17.pdf.
11
RAHUL J. NIKAM, supra note 3, at 2-3.
12 Jake Frankenfield, Trade Secret, INVESTOPEDIA (Nov 20, 2023, 05:57 PM),
https://www.investopedia.com/terms/t/trade-secret.asp.
13
Anwesha Singh, supra note 9.
14 Will Kenton, Patent, INVESTOPEDIA (Nov 20, 2023, 06:05 PM),
https://www.investopedia.com/terms/p/patent.asp.
15
Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon
and other celestial bodies, Jan. 27, 2967, 610 UNTS 205.
16
Anwesha Singh, supra note 9.
17 World Intellectual Property Organization (WIPO), Trademarks, WIPO (Nov 20, 2023,
06:36 PM), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_895_2016.pdf.
18
Anwesha Singh, supra note 9.
 CHAPTER-III
IPR PROTECTION FOR SPACE ACTIVITIES: CURRENT SCENARIO

Given the immense significance of IPRs in space technology, particularly in this changing world
scenario, it is important to analyse the existing legal regime concerning it. The relevant international
and domestic laws or treaties related to IPs and space activities are elaborated in the following
sections.

Relevant International Legal Framework:

Principle of Territoriality:
According to this principle, IPRs are limited only to the territory of the sovereign that grants them
and not outside it. This gives all IP laws a national character.19
Paris Convention:

The Paris Convention for the Protection of Industrial Property of 1883 20 is the first international
treaty on IPs that applies to industrial properties including patents and trademarks. Its substantive
provisions are concerned with:
1. Principle of national treatment: According to this principle, the contracting states must grant
the same protection to its own nationals and those of other contracting states.
2. Right to priority: A cornerstone of the treaty, which provides an application from one state
the right to use the same filing date in another states, provided the application is filed within
6-12 months.

The Berne Convention for the Protection of Literary and Artistic Works of 1886 21 discusses the
international rules governing copyrights. Apart from the principle of national treatment, it is based on
the following two fundamental principles as well:
1. Principle of automatic protection: The protection provided should not be conditional upon
complying with any other formality.
2. Principle of independence of protection: The protection provided should be independent of
the protection in the country in which the IP originated.
WIPO Copyright Treaty:

The World Intellectual Property Organisation Copyright Treaty of 199622, also called the WIPO
Copyright Treaty (WCT) grants additional copyright protections as an extension of the Berne
convention. Particularly, it guarantees protection to computer programmes and to data compilations

19
KP Abitha, International property and outer space: The need of international harmonized legal framework, 6 INT. J.
L. 1, 2 (2020).
20
Convention for the protection of industrial property, Mar. 20, 1883, 161 CTS 409.
21
Convention for the creation of an international union for the protection of literary and artistic works, with
Additional Article, Protocol and Procès-verbal, Sept. 9, 1886, 168 CTS 185.
22
WIPO copyright treaty (WCT), Dec. 20, 1996, 2186 UNTS 000.
and other material databases.23 Furthermore, article 8 of the WCT provides the author the right to
authorise any communication of their work to the public. This includes transmissions to and from a
spacecraft.
TRIPS Agreement:

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 199424

established minimum standards on IP regulations applied by members of the World Trade
Organisation (WTO) on citizens of other members. It is the most comprehensive IP treaty which also
introduced IP law into the multilateral trading system. 25 Important principles include the most-
favoured national treatment which clause forbids discrimination between the citizens of other
members.26
Intergovernmental Agreement (IGA):
The Agreement on Cooperation in the Detailed Design, Development and Operation and Utilization
of the Permanently Manned Civil Space Station of 198827, also known as the Intergovernmental
agreement is signed by USA, the members of the European Space Agency (ESA), Japan and Canada
and addresses the jurisdiction and control of IPs in the international space station (ISS). It was later
upgraded to the Agreement Concerning Cooperation on Civil International Space Station of 1998 28
with the inclusion of the Russian Federation. According to this treaty, any activity taking place in or
on an ISS element is considered to have taken place in the territory of the state to which that element
is registered. Thus, the principle of quasi-territoriality is used here. In the case of members of ESA,
the activity is deemed to have occurred within ESA territory, giving arise to a common territorial
treatment among them.29
Thus, it is evident that most widely-used international IP treaties do not directly space inventions nor
can it be extended to them. The IGA, on the other hand, is specific to the ISS alone. To overcome
this lacuna, certain countries extended their regulations into the outer space through domestic

legislation.30

Relevant Domestic Legal Framework:

Domestic or regional IP laws are relevant only to their respective territories. Even though
international IP agreements have achieved considerable harmony amongst national IP laws,
differences still persist which Nov eventually lead to difference in space regulations as well.31
United States of America:
23
Sankalp Jain, supra note 5.
24
Agreement on Trade-Related Aspects of Intellectual Property Rights, Nov. 15, 1994, 1869 UNTS 299.
25
Niraj Kumar, supra note 10.
26
KP Abitha, supra note 19, at 1-2.
27
Agreement on co-operation in the design etc, of the permanently manned civil space station, Sept. 29, 1988, CM 705.
28
Agreement among the government of Canada, governments of Member States of the European Space Agency, the
government of Japan, the government of the Russian Federation, and the government of the United States of
America concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 47 ZLW 143.
29
Niraj Kumar, supra note 10.
30
RAHUL J. NIKAM, supra note 3, at 381-382.
31
Niraj Kumar, supra note 10.
USA is the only country that explicitly provides domestic IPRs law directly for space activities. The
USA Patent Act32 extends the applicability of patents into outer space as is on ground territory. The
NASA Act33 considers spacecrafts as regular ‘vehicles’ which has greatly helped the interest of
private companies for commercialisation and privatisation.34
Germany:
Prior to the signing of the IGA, Germany modified its patent law so that it can be made applicable to
the inventions created on board an ESA-registered module.35
ESA-Member States:
By virtue of the IGA, German IP law, which includes space inventions is applicable to all ESA
members.36 Apart from this, ESA has drawn up rules governing IPs such as contract regulations. It
also protects then names of its programs by using registered trademarks.37
India:
Recently, India has also ventured into detailed legal modifications to support space
commercialisation. The draft version of the Space Activities Bill was released for public comments in
November 2017 and is now said to be in its final stages.38
However, the bill has certain intriguing statements regarding IPRs. According to Section 25 of the
bill, “Any invention, or other form of intellectual property rights, developed, generated or created
during the course of any space activity shall be protected by any law for the time being in force, with
the primary objective of safe guarding national security”. It further says that “Any form of
intellectual property right developed, generated or created on board a space object in outer space
shall be deemed to be the property of the central government.” Far from supporting space
entrepreneurs, such a provision can deter private participation.39 It is hoped that the modified version
of the bill addresses such issues.

32
Inventions in Outer Space, 35 USC § 105 (2003).
33
National Aeronautics and Space Act, 42 USC § 105 (1958).
34
Anwesha Singh, supra note 9.
35 Harsha Rohtagi, Patents in the Field of Outer Space, MONDAQ (Nov 21, 2023, 11:58
AM), https://www.mondaq.com/india/international-law/361228/patents-in-the-field-of-outer-
space?.
36
Niraj Kumar, supra note 10.
37
Anwesha Singh, supra note 9.
38
The Times of India (TOI), Space Policy, Space Activities Bill in final stages: ISRO Chairman, TOI (Nov 21,
2023, 12:05 PM), https://timesofindia.indiatimes.com/india/space-policy-space-activities-bill-in-final-stages-isro-
chairman/articleshow/76800268.cms.
39 Ran Chakrabarti, India’s Draft Space Law: Opening Up the Final Frontier?, MONDAQ (Nov 21, 2023,
12:06 PM), https://www.mondaq.com/india/aviation/761766/india39s-draft-space-law-opening-up-the-final-frontier?.
 CHAPTER-IV
NEED FOR A NEW LEGAL REGIME FOR SPACE-RELATED IPR

The legal system of a region should grant a creator the right to follow a recourse if the IP is being
commercially exploited. With the rise in interest in hitherto unexplored avenues such as space
mining and space tourism, it is the need of the hour to provide space companies with a strong legal
regime. However, the present legal system has various shortcomings such as the following.

Shortcomings of Present Legal Regime:

1. The foundation of all international and regional IP laws is the principle of territoriality. On
the other hand, space policies are based on the principle of “common heritage of mankind”.
Space is not territorial but equally accessible to all. This creates an inherent tension between
the two legal provisions.
2. Furthermore, even though it is necessary to register a space object being launched, the OST
mandates that the benefits reaped from space be shared with all, which is often in
contradiction with the principles of IPRs.40
3. The present international IP framework does not explicitly address IPRs for space
technology. This will be a major obstacle for any space-related large-scale development.
4. Space activities are increasingly being privatised or are developed as public-private
partnerships. Since private companies are more particular about their profit and hence their
tangible and intangible properties, effective commercialisation cannot take place with the
inconsistencies of the present regime. The policies should provide long-term predictability

and minimum regulatory interference.41 Without this, private companies Nov have to
compromise on their ownership, licenses and confidentiality.42 Receiving incentives via IPs
will also further motivate private space companies to invest and develop.43
5. Satellites in orbit continuously gather data about Earth, other planets and the universe.
Although the raw data is not relevant as an IP, copyright value exists for processed data that
provides value-addition. However, different countries have varying norms as to what
constitutes sufficient originality for granting a copyright. This creates a situation in which a
certain satellite data Nov be copyrightable in one country while it is not in another. Such
differences will make investors partial to certain territories.
6. With the number of private investors increasing, the demand for trademarks for goods and
services will also increase. Space trademarks should be provided proper protection to avoid
any diffusion or confusion. It is interesting to note that NASA itself has built an international

40
Anwesha Singh, supra note 9.
41
RAHUL J. NIKAM, supra note 3, at 4-6.
42 Tanushri Joshi, International Framework for Protection of Intellectual Property in Space, MONDAQ (Nov
23, 2023, 02:29 PM), https://www.mondaq.com/india/patent/895708/international-framework-for-protection-of-
intellectual-property-in-space.
43
Niraj Kumar, supra note 10.
 portfolio of trademarks which has been registered in the European Union (EU), Canada,
Germany, the United Kingdoms and Japan.
7. The ISS is a remarkable example of global cooperation for scientific advancement. It is
probable that such long-term scientific projects can take place again. The IGA, however, was
specific to the ISS and as such, cannot be extended to other projects. Hence, there is a
necessity for an international agreement regarding IPRs for joint space ventures. 44
8. The IGA itself is not legally self-sufficient. Since it is a collaboration, multiple regional IP
laws become significant within the same space which can cause conflicts. Particularly, it is
unclear about how ownership and IPRs will be granted to a technology that equally uses
space objects registered to two different entities.
9. The OST mandates registration of space objects and that jurisdiction and control be retained
over them. Similar clauses are used in the IGA as well. However, since a particular country is
provided the control, it is the IP laws of that respective country that will be followed which
Nov be different from international regulations and regulations of other countries. This causes
a dangerous clash of legal principles that hinders international cooperation.
10. Presently, patent laws of all countries follow a first-to-file system, in which, the patent will be
granted to a party who first applies for it irrespective of who invented it first. This is as
opposed to the first-to-invent system which is no longer in practice. However, for inventions
in outer space, filing can start only after it is returned to earth and verified. Hence, it Nov be
unfair or infeasible to apply the present regime. The period of filing could be suitably

extended.45

Space IPR – The Path Ahead:

It is evident from the previous section that the present legal regime for IPR protection for space
activities is insufficient. Indisputably, there is a strong need for a new legal regime that provides
legal clarity, adaptability and stability.46 It should have uniform legislation such that all countries can
advance in the space sector, irrespective of their economic development status.
Various aspects can be actively explored such as joint ownership decisions or a standard enforcement
mechanism to solve disputes. However, it should be ensured that expanding the legal regime does not
cause unexpected adversities for space technology. At times, enforcing IPRs Nov become an obstacle
for the free and fair access to knowledge and resources and subsequent research.47 For example, a
patent about a certain method of satellite communication using a particular orbit Nov limit the
permission of other parties to that orbit.48 With careful planning and consideration, a new legal
regime can be constructed that will lead us into the wonders of tomorrow’s space era.
44
KP Abitha, supra note 19.
45
Tanushri Joshi, supra note 42.
46
KP Abitha, supra note 19.
47
Anwesha Singh, supra note 9.
48
Niraj Kumar, supra note 10.
 CHAPTER V
NEED FOR IP
PROTECTION IN
SPACE ACTIVITY

In July 1999, a workshop on Intellectual Property Rights in Space was held in conjunction with
the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space
(UNISPACE III), which was a major intergovernmental conference for the purpose of creating a

blueprint for the peaceful use of outer space in the 21 st century. The recommendations said49

(a) More attention should be paid to the protection of intellectual property rights, in view of the
growth in the commercialization and privatization of space related activities. However, the
protection and enforcement of intellectual property rights should be considered together with the
international legal principles developed by the UN in the form of treaties and declarations, such
as those relating to the principle of non-appropriation of outer space, as well as other relevant
international conventions;

(b) The feasibility of harmonizing international intellectual property standards and legislation
relating to intellectual property rights in outer space should be further explored with a view to
enhancing international coordination and cooperation at the level of both the State and the
private sector. In particular, the possible need for rules or principles covering issues such as the
following could be examined and clarified: applicability of national legislation in outer space;
ownership and use of intellectual property rights developed in space activities; and contract and
licensing rules;

(c) All States should provide appropriate protection of intellectual property rights involving
space related technology while encouraging and facilitating the free flow of basic science
information.

(d) Educational activities concerning intellectual property rights in relation to outer space
activities should be encouraged.

Considering the paradigm shift in the trends of Outer Space activities from government to non
government players has made it quite evident that an international legal framework must be set
up in order to address IP issues arising out of Outer Space Activities and also to incentivize and
encourage the participation of non state actors
5.1 COMMERCIALIZATION AND PRIVATISATION OF OUTER SPACE ACTIVITIES

The concept of private enterprise exploiting space to build and grow thriving business ventures
is nothing new. It has been around since 1965. That’s when the first commercial satellite, called
Early Bird, went into regular revenue service with 240 telephone circuits. Today, the commercial
utilization of space is an essential component of telecommunications, financial markets, and a
host of other critical sectors. But now the private sector’s involvement in space is fast
approaching a new paradigm, courtesy to a growing number of entrepreneurial pioneers.50 With
increased private space activities, we are confronted with the challenge of striking a delicate
balance between private rights and the public rights. If private rights are not provided adequate
protection, no entity would be willing to conduct innovative activities in space as it calls for
huge investments, thereby hindering the growth of Space Industry. Thus, it would be quite
pertinent to state that the acquisition and protection of intellectual property rights would have a
positive effect on the participation of the private sector in the development of outer space
activities and on further development of space technology in general. It shall act as an incentive
for such private actors and further encourage them to participate effectively in Space
Explorations.

During the last two decades, increasing emphasis on reducing governmental budgets worldwide
has forced the world’s space faring nations, including India, to reassess their civil space
programmes and hence, allow for privatisation and commercialization in the field. A mutually
rewarding partnership between the Indian space programme and the industry has been built over
the past two decades. The space application sector witnessed tremendous developments with the
active involvement of the private sector. In the 1980s, Indian space efforts witnessed an
execution of large-scale application projects. This transformation not only brought about a sense
of appreciation and confidence from the private sector but also necessitated the national space
agency to make all-out efforts to ensure the participation of the industry as space activities
increased. The technological consultancy scheme launched in the early 1980s evoked an
excellent response from the industry and research organisations in the country. For its part, the
Indian industry played an important role in space projects and infrastructure development. The
national space agency established its own wing aimed at technology transfers and industrial
consultancy. A number of technologies developed in-house were transferred to various other
industries. Antrix Corporation, the commercial wing of the Indian Space Research Organisation
(ISRO), was established in 1992 with the objective of marketing space products and services in
India and abroad. India’s recent push for commercial activities will definitely give boost to its
economy. Presently, to deal with commercial activities, India has Remote Sensing Data Policy
2011, Satellite Communication policy 1997 (Satcom Policy 1997), National Telecom Policy
2012 and Mapping Policy 2005. Very recently, India also opened its market for private players in
space, mainly in the telecommunication sector. India is consistently emerging as a serious
player in the international space market.

Though space proliferation has been going on in a big way, there is no comprehensive or
specific space law in India. The current policy framework governing the space sector in India is
devoid of any consideration for the recent developments, including active involvement of the
private sector and commercialisation of space activities. Industry relationships, private
participation in space activities both in India as well as in international ventures, transfer of
technology and products marketing also need legal clarification. The absence of space
legislation is likely to leave the judiciary to ‘legislate’ and fill the gap in the law. However,
judiciary interprets law when the statute exists to that effect. Therefore, there is a dire need of
spacelegislation in India which addreses the issues of commercialization and inter related IP

aspects of it.51
 CHAPTER-VI
SUGGESTIONS AND CONCLUSION

Outer space is a vast ocean about which we only have miniscule knowledge. It has the potential to
provide us with resources that will fuel the needs of the future human civilisation. It should be
properly explored using the necessary equipment and techniques to utilise it. This involves
sophisticated technology created by the finest capabilities of the human mind. Since space
technology, like various other fields uses the products of intellectual capacities, their creators should
be incentivised by providing them with the exclusive permissions over such inventions. In other
words, inventions in space technology deserve intellectual property rights to guarantee exclusive
rights. This research analysed whether there is a necessity for a new legal regime for space-related
IPR.
The IP protection granted to space technology Nov be in the form of patents, copyrights, trademarks,
etc. International IP laws are mainly regulated by the Paris convention, Berne Convention, WIPO
copyright treaty and the TRIPS agreement. The intergovernmental agreement made for managing the
ISS is the only treaty that directly addresses IPRs for space activities. However, its participants are
only a few major space-faring nations and its scope is limited. Further, some countries have modified
their domestic IP laws to suit space activities too. USA extended the applicability of its patent laws to
outer space. Germany and other ESA-members have also made changes to regulations. India is in the
process of preparing its space activities bill. Unfortunately, none of these have regulations have
provided a universal harmonised legal system for space IPRs.
The present legal regime was critically analysed and it was found to have various drawbacks. While
space laws are non-territorial, uniform, and shared, IP laws are territorial, non-uniform and exclusive.
This fundamental distinction creates inherent conflicts in space IP laws. Space sector is presently
undergoing revolutionary changes with the rise of commercial space companies. However, it is a
matter of worry that the legal system is lagging far behind and does not provide any clarity about
ownership, incentives or contracts. Even amongst various states, there is no general understanding as
to how knowledge will be owned and shared, especially in the context of joint exploratory projects.
Thus, it was concluded that there is an exigent necessity for a new legal regime for IPR protection of
space activities, as hypothesised. The international regulations concerning IP should be considered
along with the treaties governing space exploration to achieve an acceptable universal standard for
intellectual protection. It should be ensured that providing IPR should not prevent the dissemination
of necessary knowledge. This will enhance coordination and cooperation between states as well as
between states and private companies. With such a reliable international framework, space will truly
become a “common heritage for mankind.”
 BIBLIOGRAPHY

Airbus, New Space, Airbus (Nov. 14, 2023, 03:37 PM),

https://www.airbus.com/public-affairs/brussels/our-topics/space/new-space.html.
Anwesha Singh, Intellectual Property Law and the Outer Space: A Promising Future Ahead?,
mondaq (Nov 20, 2023, 05:42 PM),
https://www.mondaq.com/india/trademark/762020/intellectual-property-law-and-the-outer-
space-a-promising-future-ahead.
Diganth Raj Sehgal, Need for Intellectual Property Rights in Outer Space, iPleaders (Nov
20, 2023, 05:22 PM, https://blog.ipleaders.in/need-intellectual-property-rights-outer-space/.
Harsha Rohtagi, Patents in the Field of Outer Space, MONDAQ (Nov 21, 20201, 11:58 AM),
https://www.mondaq.com/india/international-law/361228/patents-in-the-field-of-outer-space?.
Jake Frankenfield, Trade Secret, Investopedia (Nov 20, 2023, 05:57 PM),
https://www.investopedia.com/terms/t/trade-secret.asp.
KP Abitha, International property and outer space: The need of international harmonized legal
framework, 6 Int. J. L. 1, 2 (2020).
Niraj Kumar, IPR Regulation in Space Cross Country Analysis, IJNIET (Nov 20, 05:45 PM),
http://www.ijniet.org/wp-content/uploads/2020/02/17.pdf.
Rahul J. Nikam, Space Activities and IPR Protection – Need For A New Legal Regime, 1-5
(2013).
Ran Chakrabarti, India’s Draft Space Law: Opening Up the Final Frontier?, MONDAQ (Nov
21, 2023, 12:06 PM), https://www.mondaq.com/india/aviation/761766/india39s-draft-space-law-
opening-up-the-final-frontier?.
Sankalp Jain, Intellectual Property Protection in Outer Space Activities, Social Science Research
Network (Nov 20, 2023, 05:18 PM),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820625.
Tanushri Joshi, International Framework for Protection of Intellectual Property in Space,
MONDAQ (Nov 21, 2023, 02:29 PM),
https://www.mondaq.com/india/patent/895708/international-framework-for-protection-
of-intellectual-property-in-space.
The Times of India (TOI), Space Policy, Space Activities Bill in final stages: ISRO Chairman,
TOI (Nov 21, 2023, 12:05 PM), https://timesofindia.indiatimes.com/india/space-policy-space-
activities-bill-in-final-stages-isro-chairman/articleshow/76800268.cms.
Will Kenton, Patent, Investopedia (Nov 20, 2023, 06:05 PM),
https://www.investopedia.com/terms/p/patent.asp.
World Intellectual Property Organization, Understanding Intellectual Property, WIPO (Nov. 17,
2023, 05:09 PM), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_895_2016.pdf.
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