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Protecting Intellectual Property Rights in Outer Space

18 Sep 2023

Chandrayan 3 has heralded India and the global community into a new orbit of development and growth trajectory. The achievement has opened new business opportunities for India. For decades, commercial exploitation of outer space has thrived in domains like communication, navigation, satellite launches, and weather forecasting. However, in recent years, the space industry has undergone a remarkable transformation with countries around the world, both established space powers and emerging players, actively participating in space exploration.  

Global Legal Framework and the Need for Modernization

All space activities whether exploratory or commercial are presently governed by two international treaties, the Outer Space Treaty of 1967 and the Moon Treaty of 1979 which in principle, allow and regulate peaceful use of outer space and terrestrial bodies for general good of humankind, disallowing ownership claims and military activities. 

However, these treaties trace their roots back to the Cold War era, and given that we have transitioned beyond that period, having a brand-new perspective is necessary. The USA, for instance, has enacted its own laws asserting ownership of inventions made, used, or sold in outer space. USA has recently shared its vision in the Atlantic Council, advocating to overhaul the UN treaties for facilitating space activities for commercial purposes. The Indian Space Policy 2023 emphasizes on commercialization of space activities as well. 

Challenges in Applying IPR to Outer Space

Intellectual property rights (IPR) are crucial for expanding commercial exploitation of outer space. Private investment which is essential for this purpose will not flow unless we have a well-defined IPR regime to protect inventions and discoveries emanating from research undertaken in outer space and terrestrial bodies like moon. 

Territoriality and sovereignty are at the centre of all existing IPR laws and these principles do not apply to outer space and celestial bodies. Thus, as the things stand today, any sort of appropriation is not legally possible and is untenable in the existing framework.

There is also no globally accepted definition of the starting point of outer space. While the Karman Line at 100 km above sea level is often considered the boundary of space, it lacks a unified legal standing. The present jurisdiction of countries for civil aviation activities extends only a few kilometres above Earth, leaving outer space beyond national borders. Hence, adapting terrestrial IPR laws to the extraterrestrial domain requires urgent consideration.

Complexities in Space Patenting

Satellite communication and navigation, driving revenue generation for decades, underscore the need for IPR protection in space endeavours. Although the enforceability of patents in space is intricate, numerous patents for inventions relevant to space exploration and satellite technology have been issued. The question of infringement enforcement in space further complicates matters, especially for systems incorporating technologies, materials, and electronics.

Are patents being issued for inventions useful in exploration and exploitation of outer space? The answer is yes; one of the first few patents was issued in USA in 1961. Subsequently, several thousand patents have been granted (based on my research). However, the question of how many of these patents can be enforced in outer space remains a significant issue. 

Can individuals be charged with infringement for replicating patented technology in outer space or on celestial bodies? It is a complex subject involving orbit selection, orbital dynamics, satellite designs and their management in the intangible realm of space. Apparently, orbits themselves are not patented but systems incorporating technological solutions, special materials, electronics etc. for telecommunication are the subject matter of patents. There is a need for further global discussions on this subject.

The situation becomes even more complex when considering scenarios like filing a patent based on materials collected from celestial bodies. While theoretically feasible, enforcing such IPR, particularly beyond Earth, raises intricate questions. Solutions might involve placing patents in the public domain upon grant or exploring novel licensing arrangements suitable for outer space environments.

IP Challenges for ISRO

ISRO would have generated a wealth of intellectual property in its journey to the success of Chandrayan 3. ISRO would have its IP in navigation and communication, selection of low energy orbits, low-cost outer space journey and many others. Some of these IP would be in the form of know-how and trade secrets and others may be protected as patents, copyrights and designs. These assets will play a pivotal role in attracting business, navigating trade competition, and influencing the framing of new international laws and treaties. 

ISRO’s IP portfolio positions India to lead future discussions on a global treaty permitting resource collection from celestial bodies and data utilization.

The Future of Indian Space Industry

The Indian space industry has emerged as a formidable player in the global arena, marked by its impressive technological advancements and innovation in recent years. It has made significant strides with missions like Chandrayaan and Mangalyaan, demonstrating remarkable feats in space exploration. However, as the industry matures, concerns related to technology, innovation, and intellectual property (IP) have come to the forefront. 

Balancing the need for sharing scientific knowledge and fostering global collaboration with safeguarding proprietary technology and IP rights poses a complex challenge. Striking the right balance will be crucial for India’s space industry to continue its upward trajectory while addressing the legitimate concerns surrounding technology sharing and intellectual property.

This article was contributed by Mr R Saha, Senior Adviser – Technology & IPR, CII. Contact: raghav.saha@gmail.com

For more information about CII’s IP initiatives visit: www.ciiipr.in

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