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.