Aerospace exploration began in October 1957 when Russia deployed the unmanned Sputnik-I satellite into deep space. In 1958 the United States followed this space mission by the unmanned Explorer I satellite. Later Russia sent Vostok I, the first manned satellite, into earth’s orbit in April 1961, preceded a month later by the United States with a manned spacecraft. Space law is an important part of international law applicable to the outer space area. Now it’s the word “Outer Space Field” refers to 100 kilometres above the earth’s surface. Below that hemisphere is the air space area. The border, however, between airspace, as there was no international agreement defined for outer space. By tradition practice, we could say that the spacecraft does not descend below 100 kilometres from Earth and the planes do not travel above this point.
Space operations at the beginning of the scientific revolution were primarily public or governmental operations and were not private. However, the exploration and use of outer space in modern days isn’t limited to public and governmental activities and extends to private and commercial enterprises as well.The legal justification for this has been found in Article VI of the Outer Space Treaty of 1967, which establishes that States are collectively responsible for national outer space activities carried out by government agencies or non-governmental agencies and that State also authorizes non-governmental outer space activities.These operations include remote space detection; direct Telecasting, launching, and space vehicle facilities, space, and microgravity research fabrication, among many others. But the question is whether there is adequate security for the private sector to pursue commercial space operations, i.e. whether businesses assume that their investment will yield a reasonable return.
Protecting one’s innovation is vital to success in the creation and commercialization of every new technology on Earth or in space.Intangible or intellectual property also results in the invention, which includes patents, copyrights, trademarks, and trade secrets. Although national laws and international treaties allowing for intellectual property protection on Earth are quite well-known and unresolved areas are relatively well-defined but in space, intellectual property protection is subject to more unknowable.The technology is often novel, and the law develops at best. International outer space law bases essentially on the interpretation and implementation of the space treaties of the United Nations. Such treaties deal mainly with governmental space operations but do not directly discuss the security of intellectual property, which is very important for the private sector to become active commercially. Recognition of non-governmental rights and obligations Space entities will evolve with increasing activity in space by those entities Umbrella.
Sovereignty in Outer Space
The United Nations issued a resolution 1721 on 20 December 1961:
- International law, along with the United Nations Charter, shall refer to outer space and celestial bodies;
- Outer space and celestial bodies are open to being explored and used in compliance with international law by all States and are not subject to national appropriation
Article II of the Treaty on the Outer Space notes that “outer space, including that of the Moon and other celestial bodies, shall not be subject to national ownership by demand of sovereignty, use or occupation, or by other means”. In outer space, then, there is no state sovereignty. It is considered a “Res Communis”. It is public property or a public’s interest. Thus, outer space is not owned and operated by anyone, and that anyone could use it for any intent. However, this doesn’t mean that States could not exercise any degree of authority in the exploration and utilization of outer space. However, according to Article VIII of the Outer Space Treaty of 1967 the authority and jurisdiction over a space object shall remain in the state registering such space object and of its staff.
International Sovereignty of Space Law
There had been various legal issues regarding space law at the beginning of space-age. The primary worry was all about outer space sovereignty. Other major areas of concern included jurisdiction over space objects, obligation, and accountability of states for damages.Whether space should also be developed like the Law of Sea or the Law of Air and also whether space should or should not be open for exploration has been posed some questions. The United Nations formed an ad-hoc Committee for Peaceful Outer Space Uses (COPUOS) to address these issues and concerns. The UN adopted Resolution 1721 of 20 December 1961, supported by COPUOS, which provides that international law, along with the Charter of the United Nations, extends to outer space and constellations bodies, and outer space, is free to be explored and used by all States in accordance with international law and is not subject to federal appropriation.
However, it is significant to mention that there are a variety of treaties signed that have been adopted so far concerning the conventions on space law and that the International Law of Outer Space is based on those treaties. Which are the ‘1967 Outer Space Treaty’, the ‘1968 Rescue Agreement’, the ‘1972 Responsibility Convention’, the ‘1975 Registration Convention’, and the ‘1979 Moon Pact’, the ‘Outer Space Treaty’ is between them the most relevant treaties. Like with the 1944 Chicago Convention on Civil Aviation, the Space Treaty is indeed a space law statute. The Outer Space Treaty, being the first international instrument covering space law, sets out the basis on which space law should be further evolved.It lays out specific fundamental principles for the use and exploration of outer space that are the following:-
Freedom of Exploration and Use of Outer Space:
The concept is dealt with in Article 1 and Article 2 of the 1967 Outer Space Treaty. Thus according to Article 1, Outer Space is free for all States to use and discover, and Article 2 states that Outer Space is not subject to national exploitation by the claim of sovereign rights or by use or invasion, or by any means. It means space is without national sovereignty. Implementation of international law, Article 3 of the same guides that the outer space operations of all States Parties must be carried out in compliance with international law including the Charter of the United Nations.
The obligation of using the Outer Space for Peaceful Purposes:
Article 4 integrates this principle which asserts that States Parties are obliged to be using outer space for humanitarian purposes only.
Article VI of the 1967 Treaty on the Outer Space specifies for “The States Parties to the Treaty shall inherit international obligations for national outer space operations, including Moon and other celestial bodies, whether those activities are performed by government agencies or non-governmental organizations, and for ensuring that national operations are performed in compliance with the provisions of the present Treaty.The operations of non-governmental organizations in outer space, including the Moon and other celestial bodies, shall require that the relevant State Party to the Treaty approve and continue to supervise them.Where an international organization carries out operations in outer space, including the Moon and other celestial bodies, the accountability for conformance with this Treaty shall be borne by both the international organization and the States Parties to the Treaty participating in that organization”.
Liability of Launching State:
Article VII of the 1967 Treaty on the Outer Space provides: “Every State Party to the Treaty which releases or assembles the launch of an object into outer space, including that of the Moon and other celestial bodies, and each State Party in whose territory or facility an artifact is launched, shall be liable internationally for damages by such object or its constituent parts on Earth to another State Party to the Treaty or its natural or legal persons; in the air or outer space, including that of the Moon and other celestial objects”.
Jurisdiction and Control over the Space Objects:
Article VIII of the 1967 Treaty on Outer Space provides that”A State Party to the Treaty upon whom registration an object launched into outer space is conducted shall maintain jurisdiction and control over such object, and any of its personnel, while in interstellar space or on a celestial body.Ownership of objects launched into interstellar space, including objects settled or installed on a celestial body and constituent parts thereof, is not affected by their appearance in outer space or on a celestial body or their return to the earth. Such objects or parts located outside the limits of the State Party to the Treaty on whose registration they are transported shall be returned to that State Party, which shall, on request, provide the identification data before returning them”.
The Status of Astronauts
Article V of the 1967 Treaty on the Outer Space specifies that “States Parties to the Treaty shall consider astronauts as outer space diplomats of humanity and shall provide them with all possible assistance in the case of an accident, distress or emergency in the territory of another State Party or the high seas. When astronauts make such a landing, they shall return promptly and safely to their space vehicle’s State of authorization.The astronauts of one State Party shall make every sort of assistance to the astronauts of other States Parties in performing procedures in outer space and on heavenly objects.States Parties to that same Treaty shall immediately notify the other States Parties to the Treaty or perhaps the Secretary-General of the United Nations of any anomalies they identify in interstellar space, including the Moon and other terrestrial planets that could pose a significant threat to the health or life of astronauts”.
Registration of Space Objects
In both Article 8 and the 1975 Registration Convention, the duty of a State to exercise jurisdiction and control over a space object in outer space shall be sought if that space object is registered in the registry of that State. Also, there are five provisions endorsed by the General Assembly of the United Nations that are equally relevant concerning outer space. They are:
- Statement of legal principles regulating States’ operations in the exploration and use of outer space, 1963.
- Principles authorizing direct satellite broadcasting (DBS), 1986.
- Remote Sensing Regulations, 1986.
- Principles over the use of Atomic Power Energy Sources in Outer Space, 1992.
Proclamation on International Outer Space Cooperation for the Profits of Third World Countries, 1996.
Major Multi-Lateral Intellectual Property Treaties And Conventions
As per Article 2(vii) of the Convention establishing the World Intellectual Property Organization, the Intellectual Property shall encompass:
- Works in literature, art, and research,
- Appearances by singers, phonographs, and broadcasts
- Inventions in all fields of human life
- Experimental Results
- Designs in industry
- Trademarks, service marks and trade names and appellations
- Defense from unfair competition and all other rights resulting from manufacturing, science, and intellectual activity; scientific and artistic field.
Intellectual property is usually classified into two specific categories, namely “Industrial Property,” intended for practical industrial inventions, and “Literary and Artistic Property,” intended for artistic creations. Beyond these, new advances in technology include the construction of other sui generis structures.Although patents, product design, trademarks, geographical signs, and trade secrets fall into the category of intellectual property, copyright falls into the category of a second. Other IP safeguards are classified under sui generis schemes, such as plant breeder privileges, integrated circuitsm layout design safeguards, etc.The legal protection of the intellectual property is accomplished by a network of treaties and international organizations. The most significant organization is the United Nations’ special agency, the World Intellectual Property Organization (WIPO).Founded in 1967, the Geneva-based organization administrates almost all of the existing international conventions regarding intellectual property concerns. 24 treaties are administrated by WIPO such as the WIPO convention.
- Paris Convention (Protection of the Industrial Property, 1883)
The Paris Convention applies to industrial property, including patents, trade-marks, industrial design, and geological identification. This Convention provides for two essential laws –
National Treatment: – it asserts that each contracting party must offer the same Security to the nationals of other signatory countries as if it grants to its Diplomats.
Right of Priority: – According to these principles when a person files a request for his or her application Invention can also apply for the defense of the same invention in any other Contracting State within a certain period in one of the Contracting States, and that later application shall be considered to have been submitted on the same day as the first.
2. Berne Convention (Protection of Literary and Artistic Work, 1886)
This Conference is about copyright rights. It also follows three basic values i.e., national care, most preferred nation (MFN) care, and equal opportunities. National treatment should not be conditional i.e. rule of automatic protection and consequently, such protection is independent of the nature of protection in the work’s country of origin.However, once protection in the country of origin ceases, other contracting states may refuse the protection.
3. WIPO Copyright Treaty (WCT), 1996
Within the Berne Convention, this Agreement is a special arrangement. The treaty addresses two topics to be covered by copyright, one being computer programs and the other being compilations of data or other content repositories of some way that constitutes intellectual creations.
Importance of Intellectual Property Rights in Space Regime
Given the fact that space technology is still one of the most advanced technological fields, and outer space activities are, in essence, the product of intellectual creations, it is only in recent years that the security of intellectual property has gained broader interest in connection with outer space activities.The important segment is that space activities are moving gradually from state-owned activities to private and commercial activities. Such operations comprise remote space sensing, direct broadcasting, and micro-gravity system research and manufacturing.Thereby, not only commercial exploitation is increasing but also the privatization of agencies is equivalently boosting but these non-governmental entities are more conscious of their property which is both intangible and intangible forms. Furthermore, because of financial and technological capital, government agencies are partnering today with private companies for space activities.Further licensing arrangements between government space agencies and private companies are concluded. This private funding has to be driven by the prospect of potential recovery of the R&D investment.So the defense of intellectual property rights in outer space activities certainly has a beneficial impact on the private sector’s involvement in the production of outer space activities.
Secondly, another explanation of why globalization of space activities is becoming increasingly necessary Security of intellectual property rights in space; International Space Station (ISS) conducts more and more space operations under foreign collaboration schemes. Therefore, a clear, consistent, and reliable international legal structure is required.Although national laws on intellectual property are well harmonized, they are different. Specific standards also apply to regional legislation. Consequently, there is a strong need for a consistent legal system that addresses the defense of intellectual property rights in space activities.
Thirdly, new market possibilities are due to the advancement of space technology appearing. For instance, while it is still a fantasy for the general public, the advancement of space transport technology has paved the way for space tourism.Up to now, when discussing the protection of intellectual property rights for space activities, the main concerns correspond to copyright protection of inventions created or used in outer space or the protection of copyright of databases using information recorded through space activities.The security of trademarks and product design in outer space will also become an important issue if space tourism becomes a reality.
Therefore we cannot overemphasize the value of providing a legal framework that protects IPR in space activities. The absence of such a system decreases the efficacy of international cooperation between states and other organizations engaged in space research.IPR security seeks to promote the image of the human mind to the good of the public in such a way as to enable the designer and the user to be more involved in space science and exploration.
National Intellectual Property Law in Outer Space
Regional and national intellectual property rights legislation typically extends only to the territories of the country in question. The protection of intellectual property in a given country is therefore regulated by the applicable national law on intellectual property.While WIPO treaties and trade-related aspects of intellectual property rights have achieved some degree of harmonization between different national intellectual property laws, there are still significant disparities between national/regional intellectual property laws that result in a specific level of protection of intellectual property in each country’s territory.
But on the other hand, the non-appropriation of outside space by any country (Article II of the Outer Space Treaty) is among the most fundamental elements under international space law. However, the Outer Space Treaty distinguishes between ‘outer space as such’ and ‘an object launched into outer space’. As far as an object propelled into outer space is regarded, the State on whose registry such an object is borne shall maintain jurisdiction and authority over that object and any workers thereof in compliance with Article VIII of the Outer Space Treaty.
Additionally, the Convention on Registration provides a rule as to who can register a space object.According to that Convention, a “launching State,” a State which launches or procures the launching of a space object or a State through which a space object is propelled on its territories or facilities, shall register the space object with an appropriate registry.Where two or more launching States exist, they must ascertain among themselves which one of them will register the object, without prejudice to the appropriate agreements entered into between the launching States on jurisdiction and control over the space object and any of its personnel.In other words, the nationality (registering State) of the space object is defined by the authority and control over the space object and its staff.
At the same time, a question remains if the territorial jurisdiction under intellectual property law allows the extension of each national law to the objects that have been licensed and deployed into outer space by the respective government.
Two circumstances occur in this respect:
Firstly, the law will apply if the operation is carried out outside, irrespective of the place where the invention was made?
Secondly, what rule will apply if actions are carried out in outer space but are carried out in one or more countries or used in them?
In the case of the second circumstance, the national intellectual property law of the responsible country or countries will implement but in the scenario of the first circumstance till now there is no law. Therefore, a distinct assessment as to the pertinence of general intellectual property rules may be deemed necessary only in so far as activity is carried out in outer space, regardless of the location where the invention was made.
The United States of America is the only nation to have adopted a specific clause that provides a connection between the three main elements: innovations, authority, and territories. Section 105 of U.S.C. 35 (Out-space Inventions) reads as follows:
- “Any invention developed, used or marketed in interstellar space on a space object or element inside the direction or control of the United States shall be deemed to have been manufactured or used or marketed in the United States for that title, besides any strictly delineated space object or component thereof and, Or created for a foreign agreement to which the United States is a party, or towards any space object or item thereof undertaken on a foreign state’s registry in compliance with the Registration of Objects Launched into Interstellar Space Regulation”.
- “Every observation made, used or sold outdoors on a space object or part thereof performed in a foreign state ‘s registry in compliance with the Convention on the Registration of Objects Launched into Outer Space shall be considered to have been made, used or produced or Sold for this title in the United States, given that this has been expressly agreed in an international agreement between the United States and the State of Registry”
The United States of America’s patent law thus has a quasi-territorial effect on a space entity held on the United States of America’s register, unless determined otherwise by an international agreement.
Legislation for Space in India
India, like many other nations, has not implemented any legislation on space. Therefore, when compared to other developed and developing nations, the omission of domestic space legislation as a significant lacuna in the Indian legal system and propose the drafting of a detailed and futuristic domestic law on outer space activities.
India is a member of all international conventions on space which constitutes the major body of international space law. India has also played an important role in adopting five sets of legal principles through the resolutions of the UN General Assembly which provide for the implementation of international law and the promotion of international compassion and collaboration in space activities.It is also obligated to give force to the different rules found in these norms through the means of effective domestic legislation. All areas directly or indirectly relevant to space operations under the Indian Constitution fall within the Union’s jurisdiction under a set of entries in List I of the seventh timetable to the Indian Constitution.
It is therefore for the Indian Parliament to take the initial step in thePath for the enactment of a law for India to effectively control various aspects of India’s space policy.Owing to recent developments at national and global level, are involved private sector participation and the commercialization of space operations and agreements signed nationally and internationally with different agencies, states, international and intergovernmental organizations are in great need of space legislation in India.
Secondly; most significant reason for a space law in India is that now Indian space activities have been greatly diversified and have come to stay, having successfully demonstrated their implicational capabilities, the current institutional system set-up needs to be redefined and formalized, and interdepartmental cooperation facilitated, making it a legal standard.
Thirdly, as shown by the experience of developed countries such as the USA, there is a need to clarify relevant legal standards and regulations about both public and private law aspects of space activities.Public law deals with space authority competence, legal status of space objects, space operation regulation, space industry regulation, court dispute resolution and jurisdiction, and space and construction protection aspects.Private laws on the other hand include fair trade practices;corporate law, insurance and benefits, shares, contracts and actual results, torts, personal property, patents, copyrights, and other intellectual property rights, etc.
Fourthly, the commercialization of space activities is in the process of setting up a vast space activity and space market where India plans to sell its space products and has already started to sell them.So the question of corporate-industry partnerships with Antrix, privateparticipation in Indian and international space operations, technology transfer, and marketing of goods may need to be explained.So, given the seismic changes taking place in the domestic as well as international realms, it is the need for the hour that India should enact domestic space legislation.
Therefore India needs to implement as soon as possible a National Space Legislation. India needs to resolve all legal and commercial concerns relevant to domestic and international space activities seriously and realistically before space laws are enforced.Through properly specifying the requirements and procedures, the related regulatory uncertainties in issuing authorizations, licenses, permits, and approvals for communication satellite operations must be minimized.
A well-defined space law shall allow existing infrastructure and resources to be better capitalized and optimized by:
- Promoting the orderly and coordinated growth of the space sector through recognition, and credibility of space programs ongoing;
- Providing opportunities for potential domestic and international space operators;
- Foster the development of indigenous technology in line with international standards;
- Setting up processes to monitor and avoid the abuse of space activities;
- Providing rigorous punishment for violators of space law.
India needs to review critically and objectively the provisions found in other countries’ space laws, as well as US Space Laws, Commercial Space Act, 1998; Land Remote Sensing Policy Act, 1992, Outer Space Inventions, etc., to formulate and implement its space laws.The Indian domestic space law shall contain the following provisions for the rational use of outer space for the good of all mankind worldwide and aimed at India’s welfare and defense, including:
- Provide for aeronautical and space activities to be supervised by a civilian agency except those relevant to the production of weapon systems, military operations or India’s defense;
- Foster commercial space use;
- Promote the production and operation of vehicles capable of spatially transporting instruments, tools, supplies, and living organisms;
- Set licensing requirements for space entrepreneurs affiliated with various types of Business and technology activities;
- Protect the rights of ownership in inventions and provide for environmental protection provisions;
- To encourage and manage autonomous educational institutions in accordance with international standards for the treatment of professionals in the space;
- Provide for liability protections which include matters relating to insurance which compensation;
- Ensuring international cooperation to promote public safety and space enterprise; and
- Providing cooperation with machinery for defense.
The proposed legislation should, therefore, provide for the establishment of the National Space Agency, Space Activity Licensing and Certification, Space Activity Economic Conditions, Space Infrastructure Provision, Space Safety, and Space Liability, Space Insurance, International Cooperation and the Protection of Outer Space Intellectual Property Rights.This draft would be a consolidation of divergent regulations to bring about comprehensive and harmonious space legislation that would benefit our country.
Space, the ‘natural heritage of mankind,’ offers ample incentives for multiple joint venture projects involving multi-state partners and private businessmen for various creative human cause applications. In the outer space, particular inventions made therein acquire certain special dimensions of the IP rights.The disagreements between the laws of intellectual property and the regime of space law could be resolved through a harmonized system that could have been established under the umbrella of UN bodies such as UN COPUOS and WIPO by the international IPR and space law Community.Such a harmonized framework of the outer space IPR regime would fully uphold the basic principles of international space law and all other legal obligations.It is also highly advocated that the harmonized program always takes into account the needs of developing countries and encourage the legal and ethical use of the Outer Space for the good of humanity as a whole.
Frequently Asked Questions (FAQs)
- What is to be considered as Outer-Space?
- What shall be considered as a Outer-Space Sovereignty?
- What are the fundamental principles regarding the use and exploration of Outer-Space?
- What all various treaties and conventions are there regarding the Outer-Space and Intellectual Property?
- Is there any legislation of India regarding the Outer-Space or Any governance guidelines towards the same?
- What are the United Nation clauses regarding the Outer-Space and Intellectual Property?
- What is the importance of Intellectual property rights in regards of Outer-Space?
Conventions and Treaties:
- WIPO Copyright Treaty, 1996
- Chicago Convention for Civil Aviation, 1944
- Berne Convention for Protection of Literary and Artistic Work,1886
- Paris Convention for the Protection of Industrial Property, 1883
- Convention on Registration of Objects launched into outer space, 1975
- Outer Space Treaty, 1967
- Moon Treaty, 1979
- Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return ofObjects Launched into Outer Space, 1968
- Convention On International Liability For Damage Caused By Space Objects, 1972
- Barbara Luxenberg, ‘Protecting Intellectual Property in Space’, , American Institute of Aeronautics and Astronautics, New York,
https://digitalcommons.unl.edu/spacelawdocs/6/, 14 July 2020
- Chukeat Noichim, ‘The Protection of Intellectual Property Rights in Outer Space of the EU and Thailand’ , Thailand Lawyers Attorneys & Legal Services, http://asialaw.tripod.com/articles/ipspacenoichim.html, 14 July 2020
- ‘Intellectual Property & Space Activities’, , International Bureau of WIPO,
- Tomoko Miyamoto, ‘Space Related Aspects of Intellectual Property: WIPO’s Role and Activity’, , http://adsabs.harvard.edu/full/1999ESASP.442..103M, 14 July 2020