Beyond the Horizon - Intellectual Property Law in Space

Even with the recent success of the Mars Exploration Rover program and the Juno mission, mankind is still quite far from a life outside of our own little blue planet. While we look up at the sky in anticipation, hopefully one day being able to colonize a far-away place (for better or worse, dependant on your perspective), we have to consider the ramifications of this endeavor in terms of the law. 129 nations so far have signed the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which dictates that outer space is the common province of mankind, and that all activities conducted therein should be done for the benefit of humanity, not a single nation. That being said, this writer is not concerned with the broader picture, but likes to hone down on the things that matter, namely intellectual property. Therefore, what is the possible position in intellectual property law in our interstellar future?

As there is not much concrete legislation dealing with this area, one can only speculate as to what it might be; however, this writer will aim to share his thoughts on this as best he can on the basis of what exists already.

The closest mankind has reached out into space and inhabited for longer periods of time than hours or days is the International Space Station. The primary legal framework for the ISS is the International Space Station Intergovernmental Agreement, which sets out a "...long term international co-operative frame-work on the basis of genuine partnership, for the detailed design, development, operation, and utilisation of a permanently inhabited civil Space Station for peaceful purposes, in accordance with international law". Further, according to Article 5 of the Agreement, all registered parts of the ISS and its personnel are governed by the laws of their country, which adds a layer of complexity for IP in space. Article 21, however, discusses IP specifically in the context of the ISS. It states that "...for purposes of intellectual property law, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only in the territory of the Partner State of that element's registry". This would indicate that any inventions or findings made would be protectable (given favorable national legislation), although this could still be disputed. The Article also touches on infringement, only allowing for the recovery of damages in one European country, rather than all of them (provided infringement has happened in more registered parts of the ISS).

We're not the only ones seeking our fortune in the stars...

The Treaty on Outer Space also acknowledges the jurisdiction of nations over their registered materials and people, but in the context of Article 1 and 2 of that treaty, all exploration in outer space is for the benefit of all mankind, and no materials or places (including the Moon) can be appropriated by any nation as well. This raises a concern when trying to claim IP rights in findings or materials, and arguably no nation or person could claim them under the treaty.

Most nations do not have provisions dealing with IP in space, or any related issues. The United States, however, has enacted a provision that deals with inventions in space, specifically 35 USC 105. It sets out that "Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of this title, except with respect to any space object or component thereof that is specifically identified and otherwise provided for by an international agreement to which the United States is a party". This would mirror the international agreements above, where US national, space station modules etc. are treated as being under US jurisdiction. One could still envision issues, as discussed above, when it comes to the agreements the US is a party to, but it seems probable that most nations would treat intellectual property in a similar fashion in future legislation.

There remain some issues that do require clarification on a dawning Space Age. As set out in the report of the Workshop on Intellectual Property Rights in Space in 1999 (poignant even after over 15 years) that "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... [and to develop] 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". This writer does agree, although reluctantly, since the inevitable commercialization of space materials, inventions and findings will be a reality in the coming decades, and this needs to be both protected (to incentivize that exploration and invention) yet regulated to retain a high level of openness and freedom for all of mankind and the Universe. For a more in-depth look into other issues, one should consult the WIPO paper on Intellectual Property and Space Activities, which, although a little dated, is a great summary of outstanding questions even today.

Space is indeed in many ways the final frontier, and the law will have to catch up with this new world eventually. While there is no pressure to develop the law in relation to space activities, in the coming decades this will become more and more pertinent, and intellectual property will be at the forefront of this development due to the value of technology, invention and exploration in the field (especially to corporations and other private ventures). It remains to be seen how we treat this future, but one can only hope it'll be a future that holds sharing and equal benefit above individual profiteering.