Intellectual Property Rights in Space

INTRODUCTION

By Marco Ferrazzani

Original works and inventions since ancient times recognized for their value, today are well protected by law. Intellectual property (IP) so far “down to Earth”, as works and inventions are created on Earth. Since IP legally requires originality and new solution for a technical problem, space activities provide plenty of opportunities to legal protection of IP, to stimulate and attract creativity and investments.

Therefore, Space represents an opportunity and a challenge for IP, especially complex in international cooperation schemes, which create situations of parallel applications in several jurisdictions: telecommunication services, EO big data mixing, exploration missions such as ISS Intergovernmental Agreement, sample returns.

Intellectual property (IP) is the result of original expressions of ideas, inventions or other creations of the human mind. The protection for such creations originated during the 15th century, in relation to the development of the printing industry (e.g. in Venice). While the “right to copy” was first a state prerogative, the situation changed in time and legal frameworks granting to authors and inventors exclusive economic rights emerged at national and international level. During the era of development of trade and industrial revolution, the states began to appreciate the benefit of encouraging inventors to create and exploit their works, and to provide an incentive to invest. The first copyright legislations recognised ownership of a literary or artistic creation and granted exclusive rights of exploitation to authors, aiming at fostering innovation and preventing counterfeiting. IP laws are not static but changed much in following up changes in technology and society. The extent of IP rights grew rapidly in the last century in particular due to the introduction of satellite telecommunications. It led to cross border exploitation of works, contributed to shaping a digital world and to modernising certain IP rules. Changes in technology create both the greatest challenges and the greatest opportunities for the IP system. Today the situation has evolved considerably a multibillion-dollar industry is based on the IP protection of performances in multimedia, internet, new services and applications. The ultimate objective is to recognize value to those who express ideas in an original way or find solutions to technical problems through inventions for the space activities. IP protection is crucial in providing the incentive to develop, exploit and disseminate space technology. IP has a multiple nature, i.e. it has both a national and international and a consequential application in Outer Space. National and international patents may be filed for inventions created during the preparation and exploitation of Outer space activities. With the globalization of space activities increasingly under international cooperation schemes, various players operating under different jurisdictions interact. Although national IP laws are relatively well harmonized, they still derive from different principles. Once a dispute arises, each national law regulates questions as to jurisdiction. The lack of a unique reliable international legal regime requires parties to negotiate IP clauses in each international space Agreement. Due to the advancement of space technology, new business possibilities are emerging and represent additional challenges and opportunities for IP.

At first instance the recognition of intellectual property rights appears at odds with many of the fundamental principles established by the UN Space Treaties. Provisions requiring freedom of scientific investigation, prohibitions on national appropriation and reciprocity of visiting and inspection rights suggest, at first blush, incompatibility with the protections granted by intellectual property law. However, there are in fact many similarities in the space law and intellectual property regimes. Each is established and recognised at an international level, with respect to intellectual property through the WIPO Treaty and with space, the UN Space Treaties. The operation of each is dependent upon implementation and regulation at a national level. Fundamentally however they are connected by an underpinning goal of the improvement of the human condition. Space law encourages us to aspire to explore and use space for the good of all of humanity. Intellectual property law is premised on the concept of granting restricted monopoly rights, limited in duration or scope, in return for the disclosure of that creation or invention, knowledge which will benefit the public and ultimately fall into the public domain. Whilst common law and civil law traditions have slightly different justifications for the recognition of intellectual property rights it is useful to recall the Lockean ‘fruits of labour’ justification for property, which has been extended to intellectual property – what one takes from the common store (in this case ideas or concepts) and mixes with one’s own labour (or creativity) becomes the creator’s ‘property’ (albeit property that is limited by exceptions). The grant of intellectual property rights has been justified by lawmakers and courts on this basis. There are of course limits and provisos to this theory, including the need to take only as much as you need and to leave something for others, but the point here is that considerations regarding the grant of intellectual property rights and the recognition of rights of use and appropriation in outer space have much in common. It should be noted that the Artemis Accords include a provision establishing the recognition of the needs for interoperability in collaborative activities in outer space. This is a small but quite transformative step towards the recognition that commercial providers will have more to gain from developing standards than acting in competition. The impact of the Accords on the exercise of intellectual property rights will be interesting to observe.