INTELLECTUAL PROPERTY  RIGHTS AND SPACE LAW:  EVOLUTION, APPLICATION, AND  FUTURE CHALLENGES

ABSTRACT 

Just like Water, Outer Space too is a never-ending mystery to mankind. The need to explore the  dangerously captivating void called Outer Space has led to the development and expansion of Outer  space exploration. A variety of laws, rules, and regulations have been carefully framed to regulate and  govern the activities done by various Nations in Space. Technology has played a major role and still  continues to be a star player in the field of space exploration. Through thedecades, the need and  necessity to protect ideas and concepts emerging from the human intellect have led to the development  of Intellectual Property Rights. 

Space Technology too is no exception to Intellectual Property Rights. The need to develop finer, steadier  and faster satellites and space crafts to launch into space has put human minds at the crossroads of  creativity and science. A combination of these two tools unlocked a Plethora of advanced space  Technology. It is in the human nature to guard and protect the fruits of one’s own hard work. This is  where the International and National Space laws dealing with Intellectual Property Rights come into  play. 

In this paper, we aim to explore the various international treaties and National Laws with respect to  India and other nations. And at the end of this research work, we hope to create a road map consisting of  the following: 

1. The Territorial jurisdiction of Intellectual Law, Inter-Government Agreement, 1988. 2. World Intellectual Property Organization (WIPO) study on Space Law Protection, 1997 and also 3. The Paris Convention for Intellectual Property Rights, 1883. 
2. United Nations Committee for peaceful use of Outer Space on International Co-operation, 1996. 5. The WIPO Copyright Treaty.

II.INTRODUCTION 

The laws governing and regulating the activities performed by various nations in space were initially  under the umbrella of Public International Law. It was primarily composed of treaties and soft law  instruments. However, owing to the development of nations in various fields related to outer space, it  was the need of the hour to extend the ambit of space law to the municipal law regulated by the  sovereigns, to each their own. Space has also evolved into Private International Law, thanks to the  private sector development in the arena of outer space exploration. 

To facilitate the exploration of outer space, our world has observed and continues to observe rapid  growth in the advancement of various technological tools. In order to develop these technological tools,  humans have invested their time and money in creating and formulating to brew up the perfect potion  required to accommodate the increasing demand forthe technological tools needed to explore outer  space on a larger scale as compared to the previous launch. 

This rapid increase in technological advancements has opened the window for Intellectual Property  Rights to enter into the world of space law. Unlike the era in which the first spacecraft orbiting the earth  was launched, today’s space endeavours are not restricted to the government organizations and agencies.  

The scope of space exploration and research has been extended to private players as well. However, the  rules, laws, and regulations governing the activities in outer space continue to be applicable to the  private sector players. Intellectual Property Rights in relation to space imply that the state is willing and  capable of granting protection to creations outside its conventional territorial boundaries. Intellectual  Property Rights refer to the rights conferred and duties imposed on the creators and exploiters of the  intangible ideas of the human intellect. 

The contents of this paper aim to explore the Intellectual Property Rights and Space Law: Evolution,  Application, and Future Challenges

EVOLUTION OF INTELLECTUAL PROPERTY RIGHTS IN SPACE LAW 

Intellectual property refers to the creation of a mind-like ideas, inventions, designs, manuscripts, symbols, images, etc. Intellectual property is protected by law through PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS, and so on. Intellectual property rights enable people to earn  recognition or benefit from what they create or invent. This right is called Intellectual Property Rights. 

The first law on Intellectual Property Rights was on patents, which was passed in Venice in 1474 and dealt with monopoly rights to artisans for their inventions. 

As per the International Rules in Intellectual Property Rights, 

• The Paris Convention for the Protection of Industrial Properties, – National Treatment,  Framework of priority; 
• The Berne Convention for the Protection of Literary and Artistic Works, 1887- National  Treatment, automatic protection, independence.; 
• World Intellectual Property Organization (WIPO), 1974; 
• The Hague agreement concerning the International Deposit of ‘Industrial Design’, 1925 – It created the International Design Bureau of WIPO. 
• World Copyright Treatment (WCT), 1996- provides for the protection of computer programs 
• Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1995- Standard, Enforcement,  Dispute settlement. 

The legislation covering Intellectual Property Rights in India is as follows: 

1. Patents are protected under the Patent Act of 1970, and the amended act came into force in 2003 2. Industrial Designs are protected under the Design Act of 2000. This new act overtook the earlier  Design Act of 1911 
2. Trade Marks protected under the Trademarks Act of 1999. This new act superseded the earlier  act and came into force in 2003 
3. Copyrights and Related Rights are protected under the Copyright Act of 1957, which was amended and emerged as the Copyright Rules of 1958
4. National Biological Diversity Act, 2003. Geographical Indications are protected under the  Geographical Indications of Goods (Registration and Protection) Act, 1999, and other Acts  which came into force thereafter. 
5. Data Protection is protected under the Information Technology Act of 2000. The main Intellectual Property Rights are as follows: 
6. TRADE SECRET: Trade secrets are intellectual property that is to be kept confidential, and not  disclosed the property to anyone as a closely guarded secret. They are given to businesses for  information that is kept secret and is not generally known to the public 1public. This intellectual  property is known to a limited group of people. The best-guarded trade secret is the formulation  of Coca-Cola.2
7. PATENT: A patent is a property right granted to artists by a sovereign state; it provides the  holder the proper to forestall others from producing, utilizing, or commercializing the invention  for a group time, usually between fifteen and twenty years. Here, the invention should be novel,  new, technologically developed, or inventively created. excluding bound prescribed drugs and  innovations in agriculture, agriculture, or nuclear energy. The patent owner could allow (license)  alternative parties to use the invention on reciprocal terms. The owner might also sell the  property to the invention to a third party, who can then become the new owner of the patent.  Once a patent expires, the protection ends, and therefore the invention enters the general public  domain. 
8. COPYRIGHT: Copyright is a type of intellectual property enacted by the government that gives  the owner the right to protect their unique work and to make copies of a work, perform the work  in public, or make derivative works. And also, Copyrights give the creator the right to stop others  from copying, distributing, or performing their work without permission. Derivative works are  new works that are based on or derived from an existing work. Copyright protects for a specified  period, i.e., a lifetime of the artist/ author and sixty years from the death of the artist/ author. But  it cannot prevent the use of the ideas of other persons by fair exceptions. Copyright can protect literary, artistic works, musical works, cinematography, databases, computer works, architecture,  sound recordings, etc. This Act has been amended from time to time to be on par with the  international standards as specified in TRIPS. It is reflective of the Berne Convention for the  Protection of Literary and Artistic Works, 1886, and the Universal Copyright Convention. Apart  from these two conventions, the country is a party to the Geneva Convention for the protection  of the rights of Producers or Phonograms. The country is also an active member of the World  Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific, and  Cultural Organization (UNESCO). 

4. TRADEMARKS: Intellectual property rights safeguard trademarks, which set one’s business,  organization, or other legal entity apart from rivals in the market. A trademark is a kind of  intellectual property that includes a term, concept, symbol, or design that is used to distinguish  one good or service from another. Both goods and services can be identified by trademarks.  Brand names and logos are protected by trademarks from unauthorized use by other companies.  If a trademark is breached, the violator may be sentenced to at least six months and up to three  years in prison. Along with this, there would be a fine of at least Indian Rupees 50,000 and  possibly as much as Indian Rupees 2,000,000. When it comes to the global scale, we can choose  either: filing a trademark application with the trademark office of each country in which you are  seeking protection, or using WIPO’s Madrid system, which states a single procedure for the  registration of a mark in several territories. The TRIPS agreement for the protection of  trademarks incorporates the protection of distinguishing marks, recognition of service marks,  indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks,  etc. 
5. INDUSTRIAL DESIGNS: An industrial design is the ornamental or aesthetic aspect of an  article. The design may consist of three-dimensional features, such as the shape or surface of the  article, or two-dimensional features, such as patterns, lines, or colours. Under most national laws,  an industrial design must be aesthetic and does not protect any technical features of the article to  which it is applied. The owner of the registered industrial design has the exclusive right against  unauthorized copying or imitation of the design by third parties. Such an exclusive right helps to  ensure a fair return on investment, but also benefits consumers and the public at large, by  promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products. The term of protection is generally five years, with the  possibility of further periods of renewal up to, in most cases, fifteen years. 

International rules relating to Intellectual Property Rights are needed for: 

1. Encouragement for Innovation 
2. Economic growth 
3. Safeguarding the rights of the creators 
4. Ensuring Ease in Doing Business 
5. Facilitates the Transfer of Technology 

CAN WE APPLY NATIONAL IPR LAW IN OUTER SPACE? 

Like in other countries, the position of IP laws in space-related exertion is at the budding stage in India. India is a member of international conventions like the Outer Space Treaty of 1967, the Rescue Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1975, the Moon Treaty of 1979, etc. Despite this, the situation is no different in India, and there is no specific national space legislation. To support the overall growth of space activities in India, there is a need for public space legislation and, in light of the same, the government is going to introduce the Space Conditioning Bill, 2017, which has been submitted to the Prime Minister. The bill is proposed to promote and regulate the space conditioning of India and encourage the participation of private business entities in space  conditioning in India under the guidance and authorization of the government through the Department of  

Space. Section 25 of the proposed bill deals with the provisions for the protection of intellectual  property rights created in the course of any space-related conditioning. But the problem with the  provision is that it proposes that the intellectual property rights created on board a space object shall be  presumed to be the property of the Central Government. Despite the move by the government to include  private actors in space conditioning, the bill does not address and defend the interests of private entities.  The bill also fails to deal with certain important violations, similar to orbital patents and flags of  convenience. 

The bulletin made by the government to include private players in space conditioning and the offer of the Space Activities Bill 2017 show the willingness and clear intent of the government in respect of the protection of space IP. Indeed, though it could be said that there are several complications and irregularities to be addressed, the government’s notice and addition of a section in respect of the same shows its willingness to embark on the journey of introducing Intellectual Property Rights to safeguard  the interests of the private sector players.  

INTELLECTUAL PROPERTY RIGHTS AND INTERNATIONAL PRINCIPLES OF SPACE LAW 

Intellectual Property Rights in Outer Space are a very big thing in the world of Intellectual Property, as  almost all the aspects of outer space involve the ideas emerging from human intellect (Intellectual  Property) in some form. The grant of Intellectual Property Rights in outer space activities is of  significant importance since, in the past few years, Intellectual Property Rights has become a subject  that is more concerned with private or commercial affairs and is not restricted to the activities performed  by a state. The protection that Intellectual Property Rights offer to the holder of the Intellectual Property  has drastically increased its demand and value. Protection of Intellectual Property Rights (IPR) in outer  space is necessary to protect the rights of inventors in the rapid improvement of technology with new  devices and inventions. 

The development of Space Law can be understood through the following phases that were witnessed in  the 20th century: 

1. Phase 1- involved the development of concepts of space law before Sputnik: from 1910 to 1957; 2.
2. Phase 2 – involved the clarification and adoption of basic applicable laws, from 1957 to 1966; 3.
3. Phase- 3 – involves the development of various space activities and legal issues arising out of  them in the 21st century.3

Space law is considered and regarded as the cumulative body of national and international legislation,  regulations, treaties, agreements, and conventions created to regulate regional, commercial, national, and  defence activities related to outer space. The implication of the term Intellectual Property Rights in  space is that it highlights that the state is willing to and capable of granting protections to creations that  are outside the conventional territorial boundaries (i.e., in Space). With the grant of protection of the  Intellectual Property, the holder of the Intellectual Property will be able to prevent others from using or  exploiting their rights without their permission by taking legal recourse. While Intellectual Property Rights protection is subject to the principle of territoriality, according to international space law, the  state in which the space object is registered retains jurisdiction and control over that space object. 

Various activities in outer space that involve Intellectual Property protection are vehicles/objects used  for such activities, actions performed within a territory of a state for such outer space activities, and the  technology used in such activities, which is a result of the intellectual creation of any person. These  technologies include remote sensing, direct broadcasting, research, and manufacturing. 

With the continuous technological advancements, business opportunities in outer space are increasing, and they might involve Intellectual Property issues. From this, it can be concluded that Intellectual  Property in space is the next big thing in the Intellectual Property world, as creating such rights will  attract more players to participate and contribute to the exploration of outer space. 

The following articles of some of the foundation treaties can be referred to under the need for  Intellectual Property Rights in space law. 

1. Defining Articles of the Outer Space Treaty 1967: 

1.1 Article I of the Outer Space Treaty provides the so-called “space benefits” clause according to  which the exploration and use of outer space should be carried out “for the benefit and interests  of all countries, irrespective of their degree of economic or scientific development, and shall be  the province of all mankind.” Further, it states that outer space should be “free for exploration  and use by all States without discrimination of any kind, on a basis of equality and in accordance  with international law” and that there should be “free access to all areas of celestial bodies.” 

1.2 Article II provides for the so-called “non-appropriation of space”, according to which outer space  is “not subject to national appropriation by claim of sovereignty, by means of use or occupation,  or by any other means.” 

2. Article II of the Registration Convention with Articles 1(a) and 1(b) of the Convention, 1976: 2.1 Article II of the Registration Convention provides that the launching State shall register the space  object through an entry in an appropriate registry, which it should maintain. The term  “launching State” is defined in Article I(a) as “a State which launches or procures the launching  of a space object” or “a State from whose territory or facility a space object is launched.”  According to Article I(b), the term “space object” includes parts of a space object as well as its  launch vehicle and parts thereof.
3. Declaration by the United Nations Committee for the peaceful use of outer space on International  Cooperation, 1996: 

3.1The Exploration and Use of Outer Space for the Benefit and the Interest of All States, Taking  into Particular Account the Needs of Developing Countries. 

4. Article 5 of The Paris Convention, 1919: 

4.1 The Paris Convention for the Protection of Industrial Property, 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), the right of priority (Article 4), and common rules, including certain measures for  the enforcement of intellectual property rights, which all the Member States must follow. (Article 4b) is  the 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 the  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 because 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 concerning registered marks. For the particular interest in outer space  activities as discussed in Article 5, which provides that there is no infringement of the rights of a  patentee in the case of: 

1. 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; 
2. 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.4

4Sahil Singh, India: Space Law Protection the Focus on IPR, MONDAQ Nov. 23 2021 (Oct. 15 2022)- Space Law Protection  The New Focus Of IPR – Patent – India (mondaq.com)

CONCLUSION 

Through the launch of Sputnik, the era of space exploration was officially inaugurated. This has led to the United Nations coming up with needed treaties and conventions to ensure that this new field is not misappropriated by the various nations. The provisions of these treaties were mainly concerned with the activities performed by state governments in outer space. They did not recognize the activities that may be performed by private sector players in outer space. The emergence of private giants in the field of venturing into outer space has rapidly increased the demand for the introduction of a uniform Intellectual Property Rights regime. Currently, the topic of Intellectual Property Rights is prominently a national and domestic affair. Therefore, when there an issue arises regarding Intellectual Property Rights at the international level in relation to space law, it poses an almost impossible challenge. Thus, framing a uniform An Intellectual Property Rights regime that applies to all nations is the need of the hour in the field of space law.

Reference(S):

1Sakshi Sharada, A Complete Overview of International Rules in Indian IPR Law, CORPBIZ, May. 23 2020 (Oct 15 2021)- https://corpbiz.io/learning/international-rules-in-indian-ipr-law/ 

2 Nishu Kumar, IP Laws In Outer Space, MONDAQ Feb. 22 2021 (Oct. 15 2022)-  https://www.mondaq.com/india/patent/1038616/ip-laws-in-outer-space

3Siri Sakhamuru, Nature and Evolution of Space Law, LEGAL SERVICES.COM (Oct.15 2022)- http://www.legalservicesindia.com/article/2338/Nature-and-Evolution-of-Space-Law.html – :~:text=Phase%201- %20involved%20the%20development,them%20in%20the%2021st%20century