“ONE SMALL STEP FOR MAN, ONE GIANT LEAP FOR MANKIND” - Neil Armstong.
Outer space exploration is perhaps the greatest feat of intelligence, genius and innovation. The emergence of space shuttles and the significantly anticipated future of space stations have brought about commercialization of space activities especially in the private sector. In Fact there are several companies attracted by the profitable options offered by the space sector.
American based company, Blue Origin has announced its desire to create a permanent human base on the moon to provide raw materials (i.e.: Rocket Fuel) necessary for space travel. Somewhat similarly, Space X announced on 17th September 2018 that it will be launching its first “private passenger flight” in 2023 in order to develop its BFR vehicle ( a two-stage-vehicle) to be used to orbit Earth, Mars and Moon. The intricacy and high costs involved in these ventures demand adequate protection of IPR’s such as Patents, designs, copyright and Trade secrets for such companies.
As we know there are numerous systems for protecting I.P that already exist both nationally and internationally. These systems were designed for implementation on earth with little (if any) foresight into space exploration. Thus, in order for their to be secure and adequate systems for protection of Intellectual Property in Space there will be a need for a legal framework that merges the current international space agreements (discussed below) with national law, practice and regulations. Undoubtedly, however there will be a need for an
addendum in light of space.Naturally, as case law presents itself on the both national and international stage it will set precedents for dealing with Intellectual Property in Space.
The United Nations have published five(5) Space Treaties dealing with various aspects of space exploration. However, as such treaties were designed in light of governmental institutions and activities these treaties do not consider Intellectual Property as IPR’s are awarded privately. Therefore the usefulness of such treaties is restricted to the utmost basic guidelines to creating even a foundational framework.
The Outer Space Treaty established in 1967 and arguably forms the basis of International Space Law. It was designed to guarantee that Outer Space exploration does not result in a claim of ownership to any piece of the celestial body in Outer Space. I.P laws deal with the interests of private companies and insure a right holder as against all others. Thus there is a great deal of tension between outer space law and I.P. Laws.
Article 22 and Article 17 of the ITCU deals with copyrighted materials transmitted by satellite. Such articles require member states to ensure secret communications remain secret. However, sanctions imposed may be insufficient to serve as a deterrent. similarly, the UCC and the Berne Convention for Protection of literary and Artistic Works does not adequately award IPR protection for “unauthorized interception of satellite transmissions.”
Due to the lack of proper protection for material transmitted in Space a Committee of Governmental Experts was convened annually three times in a row in an attempt t deal with copyright issues.
The Brussels Satellite Convention although unsigned by India promises to take “ adequate measures to prevent the distribution on or from its territory of any programme…” Whilst the term “adequate measures” is left to each individual nation to define, the Connection has specific provisions permitting developing nations to use such programming for educational purposes. The convention awards protection to the content/subject of transmission rather than the transmission device itself (i.e.: protection awarded to signals sent and not to the satellite). Thus even this convention is not quite effective in terms of protecting Intellectual Property Rights.
On earth, human civilization has created borders that are used to demarcate a certain piece of planet earth belonging to a certain government. For example the piece of Earth that lies between Pakistan, China, Nepal, Bhutan, Myanmar, Sri Lanka and Bangladesh belongs to the Indian Government. As there has been no sort of colonization of the Celestial bodies there has not been the creation of borders on the moon or any other celestial body. This means that the general method of patency protection> or any other IPR for that matter is simply ineffective.
A Patent is protected from unauthorized creation or use.
In terms of creation it is the creative process that is patented i.e.: the process of making Rocket Fuel. The process may involve an innumerable amount od apparatus. These companies wish to mine these celestial bodies for such apparatus. Thus it is quite likely such apparatus will be spread throughout the celestial body.
There are multiple companies looking to achieve the same thing as Space x and Blue Origins, in addition these companies are founded in numerous different countries/jurisdictions. When on a celestial body such as Mars it is quite possible that one (1) item used to create rocket fuel may well be found in jurisdiction controlled by Space X and in Jurisdiction controlled by Blue Origin rendering partial performance in each jurisdiction. Infringement of a patent may be avoided due to lack of clarity as to who infringes patent rights and more especially as to if there is in fact an infringement at all.
In terms of importation as there are no geographical boundaries on such celestial bodies there are also no control ports (customs). Patented items may be shifted around easily which means that an item patented by Space X may be moved into or through Blue Origin without
realization and thereby involuntarily and unknowingly violating one or the other’s patent rights.
Thus for patent protection in Outer Space to be practical there is at the very least a great need to consider different more advanced I.P. protection strategies as the typical ones used on earth seem to be far too limiting.
Conclusively, Space Exploration is a fairly new concept and Space colonization even newer. Perhaps the companies looking to establish a human settlement on a celestial body needs first to get basic survival of mankind on Mars/Moon right first. In that for example efficient mining of Rocket Fuel may be necessary for survival of man kind. Therefore by patenting the process man will be saying to each other ‘ don’t copy my process ‘ yet that will be to the detriment of mankind. Perhaps Humankind is just not yet at that level?
That being said even if mankind were at that level there is a lot of reconsideration of general I.P> practices and international involvement necessary. The best place to start looking for guidelines and a foundation would be long standing space administration agencies such as NASA (National Aeronautics and Space Administration) or ISRO (Indian Space Research Organization)t as these agencies have valuable experience and practical knowledge of such celestial bodies.
NOTE: There are numerous other I.P issues that space exploration, travel and exploitation are faced with that are not discussed here. Please feel free to write to us should you require any further information or legal advice.