Role of Intellectual Property Rights in Space Law
Intellectual property has become important in the information age especially for many types of space activities that are at the age of the technological development and produce results that require granting and enforcement of intellectual property rights. Currently the protection for intellectual property is present only in state territories whereas most space activities are international. Space is considered as the domain of mankind as per the Outer Space Treaty.
However, to determine inter-territorial protection and jurisdiction of space related intellectual property issues Article 8 of the Outer Space Treaty is considered as the basis.
Certain major areas that need regulatory action in order to provide adequate intellectual property protection in space related developments are creation of intellectual property, in particular its location, registration regarding appropriate jurisdiction for the patentable inventions made in outer space; mechanisms for enforcement especially in case of globally sought protection; effective principles that take into account intellectual property developed on earth like satellites, rocket technologies as well as those produced in outer space like remote sensing data.
Copyright is one of the oldest forms of intellectual property protection and has enjoyed substantial attention both at the international and national level legislations.
The core principles of copyright protection are-
The ‘creator’s doctrine’, according to which only works that are intellectual creations of their authors are eligible for copyright protection.
Only the mode or form of expression of a work is to be protected and not the ideas on which it based is considered to be the next most fundamental principle of copyright protection.
To fix the work on a particular tangible matter is the third one.
Copyright is considered to be the most liberal form if intellectual property rights because of the following reasons:
It does not require any type of registration or any formal recognition
The protection starts as soon as the work is created, if it is eligible.
The basic crux of copyright protection is to ensure the creator of a work that he has an exclusive right to reproduce or use his work economically.
Even though it is the most liberal form of intellectual property rights, it has a validity of only 50 years from the date of production and expires after this period.
While keeping the work protected, the rights comprising of copyright protect can still be transferred or waived.
According to the ‘National Treatment’ approach, the creator whether a citizen of the nation or creator through contract in the nation enjoys the right and protection. The protection is given in consonance with the local legislation of the nation.
Database protection under copyright
Databases can be protected under copyright if they are eligible as per intellectual creation fixed in a material form. It is essential especially in
protection of geospatial data and remote sensing data. A number of projects regarding free and open access to geographic data, including satellite remote sensing data, have been launched in recent years like the free and unrestricted access to and use of US Landsat data, the China-Brazil Earth Resources Satellites (CBERS). But the issues these databases face is that they are arranged in a alphabetic or numerical order which creates a problem in them qualifying for copyright protection.
In 1996, the European Union introduced sui generis database protection for databases the making of which required substantial investment. The database directive lays down the requirements regarding the substantial investment and codifies the right of the database maker to prevent extraction or re-utilisation of substantial parts of the contents of the protected database. On the other hand, the range of protection is vague and even the interpretation of some provisions by the European Court of Justice did not bring the required and wanted clarification.
The license terms and conditions are different in different jurisdictions, which makes global utilization of satellite remote sensing data problematic or ambiguous from the legal perspective. The Berne Convention or the WIPO Copyright Treaty are international law instruments that provide the individual states the right to regulate this area along with territorial protection responsible for enforcement of copyright. In addition to this, the rules regarding remote sensing data and information products are also determined by national governments through regulations or policies, and sometimes even by private actors themselves.
All private companies that generate or distribute remote sensing data setup their relationships with the users through licensing agreements, which have to be accepted by the licensees in order to get a remote sensing data or an information product. In general the licensor retains ownership of the remote sensing data or information produced by the licensed satellite. Therefore, the licensee is granted the non-transferable, non-exclusive right to utilise the remote sensing data or information.
Licenses permit production and distribution of derivative works. Availability of the distribution right over products that the licensee makes depends on whether they contain imagery from the licensed data. If they do, the licensee is not allowed to freely distribute the derivative works produced.
Suggestions Regarding Use of Copyright to Protect Satellite Remote Sensing Data
One of several key problems with remote sensing data security is that it is mostly not the expression that is supposed to be preserved, but the actual substance. Conceptually, however, copyright is inadequate to those criteria as it specifically preserves only the author's original expression.
It is also advised that rights holders stop alleging that copyright protection is available to the content.
Licenses are also a viable mechanism to protect whatever one aims to protect.
Another way out is to reform copyright is to introduce new forms of protection that fit the purpose.
Due to the specifications of space activities, in particular their high-tech and innovation aspects, as well as the cost and process for hardware used to conduct them, adequate patent protection is vital for the development of this field of economic activity.
The subject matter of protection should be an eligible invention. The three fundamental criteria for an invention to be eligible for patent protection are ‘novelty’, ‘non-obviousness’ and ‘usefulness’.
Paris Convention for the Protection of Industrial Property, 1979
It regulates protection of “utility models, industrial designs, trademarks, service marks, trade names, indication of source or appellations of origin, and the repression of unfair competition.”
There is no universal criteria of patentability do not exist and may substantially differ in various jurisdictions. Thus patent protect is even more territorially limited or dependent than copyright.
Article 2 lays down the national treatment principle. It establishes that inventors from any state party to the convention enjoy the same rights in any other such state as its own nationals, and that application for a registration of a patent in any such state domicile or establishment may not be required.
Article 4 (b) provides that patents granted for the same invention in different jurisdictions are independent from each other. The effect of this principle is such that a patent holder with rights registered in one jurisdiction may not have a dispute registration and use of patent rights over same invention in other countries.
Article 5 exempts vessels, aircrafts or land vehicles registered under the flag of a certain jurisdiction passing the territory of a different one while carrying technology that might infringe patent rights registered in the jurisdiction of the state of passage. Thus, it may not be accused of a patent infringement.
The Patent Cooperation Treaty, 1970
This is a procedural treaty and the question of the patentability of the filed invention is decided by the responsible national authority.
Article 3(1) allows for filing of “applications for the protection of inventions in any of the contracting states” as international.
Challenges to Patentability of Space Related Inventions
There is also an issue regarding applicability of the patentability criteria of novelty, non-obviousness and usefulness or functionality to ‘space’ inventions. For example, when micro-gravity is the most important element based on which an invention is made, it is extremely difficult to prove its functionalities on the ground. If such a problem arises the patent may not be granted for inventions of the kind made in outer space.
The issue of jurisdiction is also a challenge. In such a case whereby space operations are conducted by collaborators who are citizens of other different nations, rules determining the appropriate jurisdiction and the persons entitled to file inventions for patent protection should be established.
The inventor may face the risk of an early disclosure, that is, before the patent application is filed. This risk may be higher in outer space than on earth because of greater attention being paid to what is happening on. Early disclosure of sufficient information about the invention transfers it into the field of prior art and renders it non-patentable. There is absence of clarity as to applicability to space activities to the exception laid down in Article 5 of the Paris Convention.
Nations with Intellectual Property Law in Consonance with Space Law
The explicit federal laws for the applicability of domestic intellectual property rights legislation to space operations exist only in United States law and the NASA Act. The US Space Bill, for example, applies the scope of copyright law to Outer Space, while the NASA Act treats a space object as nothing but a vehicle. A versatile intellectual property program has been actively implemented by the latter, which has performed exceptionally well to safeguard the ownership interest while promoting industry involvement in commercial space operations.
A number of laws regulating intellectual property have already been formulated by the European Space Agency: contract legislation, provisions in the implementing rules of optional projects, and clauses incorporated in international treaties. Each year, the ESA files about 20 patent applications related to its staff members' developments. It has therefore opted to safeguard the names of its programs by way of registered trademarks on those programs invented and created by a firm set up for that purpose with a view to potential commercialisation, e.g. as part of the Arianne program. Only the European Union plays an essential part in satellite broadcasting by providing an atmosphere in which regulatory complexities do not hamper trans-border broadcasting.
While India is a party to all international space treaties, when it comes to enacting a particular space law of its own, i.e., which does not have one, it is no different from most other nations. With the rapid diversification of Indian space operations, there is a critical requirement for extensive and harmonious space regulations to be formulated.
Need of Harmonizing IPR and Space Law
The assumption that intellectual property is important for discovering space and further leading to research and development is not disputed. Certain tensions, though, continue. The regulation of any intellectual property could interfere with and obstruct the concept of free and equal access to ideas, information and resources obtained from space activities.
While the intellectual property system is regulated by national legislation, international bodies, such as the World Intellectual Property Organisation (WIPO) and the Agreement on
Trade-Related Aspects of Intellectual Proper Rights (TRIPS), have, to some degree, succeeded in coordinating Intellectual Property Rights laws, globally.
Nevertheless, such a harmonization is not adequate for applying such security to space based operations and innovations. The need for the hour will be to create a standardized legislative regime regulating in space Intellectual Property laws so that even emerging countries will benefit from their inventions instead of being dominated by advanced countries. There is a broad variety of new aspects of Intellectual Property rights that can be widened in the Outer Space, such as the implementation in the Outer Space of territory-based national rules for protection of rights, entitlement and possession in the event of mutual activities, accordance with foreign obligations, etc. A common compliance process, such as that of International Arbitration, must also be formed to hear and settle disputes arising from Intellectual Property Rights in outer space, in addition to a uniform legal regime.
Protection of intellectual property is important for the advancement of space operations, since it is useful in protecting many of their effects, particularly as satellites produce data and information or when new patentable innovations are created. There is a need to bring in more clarity in interpretation of various provisions related to protecting the space inventions but at the same time balance must be struck to ensure that excessive protection is not granted under intellectual property rights regime. This will ensure that outer space continues to be a property of mankind.
J. Freitas Santos & J. Cadima Ribeiro, International Counterfeiting in the European Union: A Host Country Approach, 16 Journal of Euromarketing , 169-170 (2007)
Peter Hulsroj, Yearbook on space policy 2010/2011 (Springer 1) (2015)
Patrick Charnley, European Court of Justice rules on the protection of databases under the Database Directive (96/9/EC), 28 Computer Law & Security Review , 348 (2012)
Intellectual Property Law - ANGELS ANGELS, https://spacelaws.com/articles/intellectual-property-law/?cv=1 (last visited May 20, 2021)
National Law University, Patiala