INTELLECTUAL PROPERTY DISCREPANCIES IN SPACE: THE NEED FOR PRIVATE INTERNATIONAL SPACE LAW

INTELLECTUAL PROPERTY DISCREPANCIES IN SPACE: THE NEED FOR PRIVATE INTERNATIONAL SPACE LAW
Author: Adhya M, 
third year student,
 Christ (Deemed to be University), Bangalore. 
ABSTRACT
The regime of space law is commanded by the stringent principles as has been governing this disciplinary since its inception in the year 1967 by virtue of the Outer Space Treaty. The concepts of non-appropriation, non-sovereignty, province of mankind, res communis and varied other principles are ones that needs a serious reamplification in the prevailing status quo with the rapid multiplication of non-state players in the progress of outer space. With the frequency of such legitimate actors, and the inadequacy of a universal framework to regulate them, there has arisen a necessity to appraise such players through incentivising and preserving their primary interests of showcasing their return on venturing into such an uncertain terrain. In order to enhance the same, the Intellectual Property Rights of such parties must be credited to their own efforts and must not be affixed on the fluidity of territorial laws from where a spaceship originates. The extra-territorial application of IPR is a flawed system, and will impede the transgression of development in the outer space regime, as parties maybe hesitant to invest in a scheme, that will disable them from reaping benefits. Furthermore, formulating a universally recognised framework for providing such rights in outer space, will enrich the collaboration of various countries in the regime, due to a clarified stance on the manner in which each countries concentration of resources towards such a cause will propagate towards their recognition. This will only provide for the ability of mankind to take a greater leap towards discovering the unchartered benefits of outer space.

Keywords: Outer Space, Intellectual Property Rights, privatisation
INTRODUCTION
The current regime of International Space Law is governed by the interaction of spacefaring nations,[1] international treaties[2] and customs. Each of these sources of aw plays an important role in assessing the rules that govern the public domain of outer space activity. The Outer Space Treaty, a culmination of the above principles, condenses and addresses the primal focus of such an initiative being the inspiration drawn from the great prospects that opening a frontier like outer space, when carried on for the benefit of all of mankind, would combinedly result in a better usage of outer space by the participating states.
[3] 

JURISDICTION IN OUTER SPACE

These treaties operate against a backdrop of customary international law that specifies the bases on which nations may assert jurisdiction over a given matter. In general, nations assert legal jurisdiction based on territoriality, i.e., over matters occurring within their borders.[4] Nations may also claim jurisdiction based on nationality, i.e., over their own citizens whether within the nation’s borders or not.
As a general rule, the treaties that govern outer space activity eschew territoriality and instead declare principles of openness and accessibility to space. The Outer Space Treaty mandates that the use of outer space be open to all nations, and that no nation may claim sovereignty over
any portion of outer space.
[5] The treaty also encourages international cooperation in assuring scientific freedom in outer space; to this end, nations are to report the nature, conduct and results of space explorations to the Secretary General of the United Nations who will in turn widely disseminate the information.[6] 
Nationality, rather than territoriality, generally takes the lead in determining jurisdiction over outer space activity. This approach is primarily implemented through a system of international registry. The Outer Space Treaty, together with the Convention on Registry of Objects Launched into Outer Space, declares that nations retain jurisdiction and control over space objects of their registry.[7]
These treaties also specify that ownership of objects does not change simply because they are launched into outer space.[8] These principles leave the jurisdictional character of outer space open to some dispute. Under one legal theory, outer space is classified as res nullius, freely appropriable for use by first comers.[9] A different school of thought, primarily espoused by developing nations that lack access to outer space, maintains that outer space is res communis, or the common heritage of mankind.[10]  Under this theory, any use of outer space would require international community approval and must be for the benefit of all nations.

DEVELOPMENTS IN OUTER SPACE

A universal framework has been formulated wherein a position is adopted for a freedom of space for use by all, under which no nation may permanently claim any portion of outer space, though a nation may engage in the use of outer space if it does so with respect for other nations.[11] Under this approach, entities that expend resources and take risks to develop outer space opportunities should reap the benefit of resulting profits and technical discoveries.[12]
Over the past two decades, outer space law has moved from the realm of science fiction to the realm of legal necessity. Intriguing commercial prospects have prompted an increased number of governmental and private ventures into outer space and have created a demand for expertise to define the legal parameters of such ventures.[13] The result has been the emergence of a small but vigorous legal practice area[14] that combines a curious mix of international, administrative and business law.[15] This field of law is likely to grow and its mixture of disciplines is likely to become more diverse. As increasing numbers of humans work and live in outer space, increased attention must be paid to the rules governing their conduct and interactions.

CURRENT PROBLEMS IN THE IPR PRACTICES IN OUTER SPACE

The promise of a permanent human presence in space carries with it the possibility of high commercialisation in terms of research and manufacturing facilities with the attribution of high yield economic benefits.[16]
There is a general reluctance among firms to invest in outer space ventures due to the uncertainties in terms of the returns.[17] Commercial space ventures are already known to be capital intensive and high risk, with an uncertain payback period.[18]
The overlap between the IP regime and the outer space regime has recently become a matter of debate. The major source of conflict is the difference in origin of the converging fields, the former being applied through the boundaries of nationality[19] and the latter being extraterritorial in its application. [20]  Thus jurisdiction ap
plicability of such an issue being unanswered. However, strong international roots of space law favour uniform law to govern activities in outer space. It also tends towards the recognition of interests of everyone as opposed to the individual interest recognized by the IPR regime.
Providing such rights reassures outer space investors that their speculation carries a reasonable chance of making money.[21] The only hinderance to the recognition of such interest is the harmonisation of the conflicting concepts such as the phrase “benefits derived from those resources” is wide and ambiguous and remains unclear if private entities, having invested millions of dollars into the mining mission, would be willing to share the benefits with other entities or States which have contributed nothing, let alone the technology. Further, there is no defined formula for “equitable” sharing, and that is bound to give rise to disputes, and hence calls for a need to clarify the interplay between the two fields.

INCORPORATION OF IPR IN SPACE

Hence, this lapse in the outer space regime leaves the following questions unanswered:
  • Who is the rightful owner of and claimant of IPR that was conceived in outer space?
  • How far is the culmination and integration of private international space law in terms of commercialisation, compatible with a public international domain such as outer space?
  • What is the jurisdictional applicability and what jurisdiction should govern the IPR regime in outer space?
Therefore, rejecting the current practices of extra-territorial applicability of IPR regime in outer space due to its incompatibility with the principles and incentivisation of private law development is the way forward by creation of a universal framework.

CONCLUSION

Hence, the prevalent practice of IPR in outer space must be replaced with a full-fledged framework that is not outdated in its practice but rather accurately aims to provide and incentivize the private entities in outer space. Appropriate models encouraging commercialisation will encourage better research and the only manner of awarding the players for the same is through adequate IPRs that will accrue benefits to such entities in terms of the uncertain terrain they tread upon. Hence, concentration must not be on international dialog of enabling such an international framework that solves the identified issues regarding the current practice of IPR.
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[1] Harry M Saragovitz, The Law of Intellectual Property in Outer Space, 17 PTC J. RES. & ED. 86, 98 (1975).

[2] Ibid.

[3] October 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

[4] Glenn H. Reynolds, Legislative Comment: The Patents in Space Act, 3 HARV.J. L. & TECH. 13, 18 (1990).

[5] Outer Space Treaty, art. 2.

[6] Outer Space Treaty, art. 1.

[7] Outer Space Treaty, art. 7.

[8] Outer Space Treaty, art. 8.

[9] Fred Kosmo, Note, The Commercialization of Space: A Regulatory Scheme that Promotes Commercial Ventures and International Responsibility, 61 S. CAL. L. REV. 1055, 1073-74 (1988).

[10] Id. at 1074.

[11] S. REP. No. 266, 101st Cong., 2d Sess. 5-6 (1990), reprinted in 1990 U.S.C.C.A.N. 4061.

[12] Supra note 9.

[13] Edward Cohen, Launching a Legal Field, 246 Sci. 132 (1989).

[14] Glenn H. Reynolds, Space Law in the 1990s: An Agenda for Research, 31 JURIMETRICS J. 1, 2-3 (1990).

[15] Ibid. 

[16] Dan L. Burk, Protection of Trade Secrets in Outer Space Activity: A Study in Federal Preemption, 23 SETON HALL L. REV. 560, 640 (1993).

[17] O. Vorobieva, Intellectual Property Rights with Respect to Inventions Created in Space, in RESEARCH AND INVENTION IN OUTER SPACE – LIABILITY AND INTELLECTUAL PROPERTY RIGHTS 180 (Sa’id Mosteshar, ed., 1995).

[18] Ibid.

[19] Anna-Maria Balsono & Bradford Smith, Intellectual Property and Space Activities: A New Role for COPUOS?, in OUTLOOK ON SPACE LAW OVER THE NEXT THIRTY YEARS 363 (Gabriel Lafferranderie & Daphne Crowther, eds., 1997).

[20] Ruwantissa Abeyratne, The Application of Intellectual Property Rights to Outer Space Activities, 29 J. SPACE L. 1 (2003).

[21] Statement on Signing the Bill Ensuring the Applicability of Patent Law to Activities in Outer Space, 26 WEEKLY COMP. PRES. DOC. 1828 (Nov. 19,1990)
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