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Intellectual property is the creation of humankind and intellectual. It is intangible and it derives its values rather than from the idea and concept of the creator itself. In this paper we shall be looking into the principles of space law and how does Intellectual Property Rights provide appropriate protection in the outer world i.e. space. Intellectual property will not be used as a tool for an unfair bargain, there will be protection rights given on the basis of the space law.
Protection of Intellectual Property Rights
Territorial Jurisdiction of Intellectual Law, Intergovernmental Agreement 1988, the national patent law might be applicable to the space object registered even if the national patent law does not provide applicability to space object, Article 21, establishing an intellectual property regime for an international space station Article 21.2 of the IGA provides that for the purpose of an Intellectual property Law, any European Partner State shall deem that the activity has occurred within its territory of the ESA registered elements. Subject matter in more than more territory of a member of Intergovernmental agency (IGA), Article 21(4). Temporary presence provided under Article 21(6) of IGA.
Technology is advancing in a rapid space, new devices and equipment have been made, Intellectual property is marked to protect the rights of the inventor. The Paris Convention for Intellectual Property Rights 1883, does not expressly consider the question of the invention in outer space but rather allows for the establishment of a natural principle only. Berne Convention of the Protection of Literary and Artistic Work does not mention the protection of rights in outer space World Intellectual Property Organization Copyright Treaty (WCT)provides for Transmission to and fro a spacecraft is mentioned in this Article, the Agreement on Trade-Related Aspect of Intellectual (TRIPS) does not specifically address the question of outer space.
In Outer Space activities, Intellectual property is marked with the utilization of the technology which will be beneficial to mankind it has to be a province of mankind. There have been no laws for the protection of intellectual law in space exploration as the right to the usage of the exploration of the space has to benefit all the members of the society as mentioned under Article I and II of the Outer Space Treaty 1967. State to whose treaty the registry is launched into outer space shall retain jurisdiction and control over an object and any personnel in outer space or celestial body to the same as per Article VIII of the Treaty.
The Register of Convention in outer space a mentioned under Article II, Article I(a), and I(b). Intergovernmental organizations would register their space object as per the Registration of Convention in the registry of that particular country launching the space object. Territorial Jurisdiction of Intellectual Law permits the extension of each nation or region in respect to a country that has registered and launched the object into space. The United States of America is the only state which has established a link with three elements based upon key elements of the invention, jurisdiction, and territory as mentioned under Section 105 of 35 USC (invention in outer space). In other states, there is no statutory provision of any kind except that the provision is ratified by the 1988 Intergovernmental Agreement (IGA) which is conducted by the member state of the United States of America, European Space Agency, Japan, and Canada for the purpose of mutually acceptable terms for the purpose of space exploration on space agreement latter Russian federation was added to this treaty. The main objective of the Intergovernmental Agreement was to establish a long-term international cooperative framework among its members for the purpose of detailed development, operation, and the fullest utilization of the civil international space station for the purpose of having peaceful relations in terms of international space law. All states should be given access to the space station and the object in space irrespective of the technological, scientific, and economic viability of that state. The concept of mutual and reciprocal benefits while safeguarding fair competition and the principle of return on investment.
INTERNATIONAL CONVENTIONS OF IPR
1. Paris Convention, 1883
The Paris Convention for the Protection of the Industrial property is the basic international treaty that mainly emphasizes the field of industrial property but is not expressly considered with the question of the invention in outer space. However, the Paris Convention contains a provision that allows for the establishment of a national treatment principle (Article 2).
The right of priority and the common rules which will include the measures concerning the enforcement of the intellectual right which all the member states of the Convention have to follow and adhere to Article 4 of the Convention states that the patent obtained from one state are independent of the each other. This means that granting invention to the Member state, on one hand, doesn’t mean that the same patent will be granted for that particular invention in another member state.
In interest to that of outer space activities, Article 5 provides that no infringement of the patentee in the case of:
- The usage of a patent on the body vessel of another country who is a member of the Paris Convention, the body of the vessel, accessories, machinery, and gear will be the subject of the patent body when the vessel temporarily or accidentally enters the water of the said member state provided that the device is used in exclusive to a member state
- Patents will be formed on the basis of the use of devices for the purpose of construction and operation of the aircraft along with the landing vehicles which will be on the basis of the Paris Union and if a vehicle or a vessel temporarily or accidentally enters the said country
2. Berne Convention for the purpose of artistic and literary work
It is the treaty in the field of copyright law and related rights. Just as the Paris Convention, the Berne Convention did not expressly consider the question of intellectual property rights in outer space. However, it has provisions that establish basic principles such as national treatment, the independence of protection, and the principle of automatic protection.
3. World Copyright Treatment (WCT)
The WCT provides for the protection of computer programs whatever may be the form of expression, complication of data, or a database that contains material and constitutes intellectual creations. Article 8 ensures that exclusive right of authorization is provided to the author under this Article, which would make the work available to the public. Transmission to and fro a spacecraft is also included in this Article.
4. Trade-Related Aspect on Intellectual Property Right Agreement
TRIPS does not specifically address the question regarding the issue of outer space. Article 3 is the principle of national treatment whereas Article 4 states that advantage, favor, privilege by a member state to a nation shall be accorded unconditionally and immediately to other member states too. National law will ensure respect to the invention which is created according to Article 27.l of the TRIPS agreement, the patent granted will be enforceable in the said territory as if the invention is created elsewhere.
INTERNATIONAL PRINCIPLES CONCERNING OUTER SPACE
1. Outer Space Treaty 1967
Article I of the Outer Space Treaty provides for a space benefit clause which states that all the activities concerning exploration and the usage of objects in outer space will be carried out in a manner that shall be beneficial for the interest of all countries irrespective of the degree of enhancement in the field of economic and scientific development and be the province of mankind the state shall be free from exploration and there should be no discrimination of any kind on the basis of equality which is as per the terms of international law which states there should be free access by a state in areas concerning celestial bodies.
- Article II of the Outer Space Treaty: Provides for a clause called the non-appropriation of space which states as per the clause that no member state will be allowed for appropriation by the claim of sovereignty in outer space.
- Article VII of the Treaty establishes that the State to whose treaty the registry is launched into outer space shall retain jurisdiction and control over an object and any personnel in outer space or celestial body to the same. There is also ownership of objects which include land or object which is constructed on the celestial body or object which is not affected by outer space or The said component which is found beyond the limit and jurisdiction of a State who is a party to the treaty or to whom it is registered to has to return by the other state to the original state registered
2. Registration Convention
- Article II of the Registration Convention provides that the launching State shall register the space object by the means of an entry into the appropriate registry.
- Article I(a) of the Convention mentions launching state, Article I(B) mentions space objects Article VIII of the Outer Space Treaty and with prejudice to an agreement which would be amongst the launching State of the jurisdiction as well as the control over space object and their personnel.
- The Registration Convention provides for the possibility of an international intergovernmental organization that would register its space objects in space and under certain conditions for the same.
3. Declaration by the United Nations Committee
For the peaceful use of Outer space on International Cooperation in the Exploration and the Use of the Outer Space for the Benefit and the Interest of all States taking into interest the needs of Developing countries which was adopted in 1996, all states are free to determine all aspects which will be on the basis of equitable and mutually acceptable terms.
4. World Intellectual Property Organization Study
In 1997 World Intellectual Property Organization conducted a study regarding the rules and the protection of industrial property in a particular invention that was created or used in outer space, the question was based upon territory and jurisdiction and the legal question which arises between the regional space agency and its member state Principles as per Article 5 of the Paris Convention.
- Whether the states party to the agreement of WIPO clarify that the law will be applicable to the invention in the territory of the country along with the same to be registered in the spacecraft of the said country.
- There should be a contract clause that is based upon the protection of investment and the confidential information which is used in an international cooperative agreement between space-faring organizations
5. Third United Nations Conference
In July 1999, the Third United Nations Conference on Exploration and Peaceful Uses of Outer Space (UNISPACE III), which was a major governmental conference for the purpose of creating a blueprint for the peaceful use of outer space
- Utmost attention shall be given towards the protection of intellectual property rights the focus will be upon the growth of space-related activities regarding commercialization and privatization.
- The protection and the enforcement of intellectual property rights should also be considered together along with the International Convention or the legal principles of the United Nations.
- Harmonizing of international intellectual property standards and the legislation of the intellectual property rights in the outer space shall be explored with a view of maintaining and enhancing international coordination and cooperation at both State and Private Sector.
- All states should be provided with the appropriate protection of intellectual property rights which will concern space-related activities and technology.
- Space Activities concerning intellectual activities shall be encouraged.
6. Intergovernmental agreement (IGA)
There is no such statutory provision except by virtue of ratification of the 1988 Intergovernmental Agreement. German Intellectual property law is applicable to the European Space Agency (ESA) registered elements. In the absence of a legal provision, some argue regarding the provision and the applicability of the intellectual property that concern space object registration is doubtful.
Some others are of the opinion that the consideration of the patent law of the high sea and of the aircraft which is registered by the State, the national patent law might be applicable to the space object registered even if the national patent law does not provide applicability to space object as far as copyright protection is concerned, the determination of spacecraft is less important as what is considered is the authors’ nationality and the work which is protected under this law.
Copyright is mainly concerned with the publication work of the author which is mentioned under Article 3(1)(b) of the Berne Convention, The determination of the jurisdiction as far as intellectual property is concerned regarding launching of element into a space station, joint governmental administration can lead to a specific agreement on jurisdiction and control over the elements of the International space station is the cooperative agreement for the purpose of operation and utilization of space station amongst the countries of the United State of America, the Member State of European Space Agency(ESA), Japan and Canada (the Intergovernmental Agency(IGA)) concluded 1988.
The 1988 IGA was upgraded by the Agreement Concerning and Cooperation on Civil International Space station which included the participation of the Russian Federation. Article 21 of IGA deals with establishing an intellectual property regime for an international space station Article 21.2 of the IGA provides that for the purpose of an Intellectual Property Law, any European Partner State shall deem that the activity has occurred within its territory of the ESA.
The quasi-territoriality principle is implemented by the space stations through the European Space Agency registered elements which are to be considered as the common territory of all the European Partner states, the applicability of the principle of quasi-territorial is the registration of all those space objects which have a connection with an intellectual property right.
PROTECTION OF IPR IN OUTER SPACE
Article II of the Outer Space Treaty is the most important clause as it makes a distinction between outer space and also the relevant objects which are launched into space, the object launched into space is in accordance with Article VIII of the Outer Space Treaty. Further, the Registration Convention introduces a rule regarding who shall register a space object, when there are two or more launching States and from whose registry shall the launch be determined from Territorial Jurisdiction of Intellectual Law permits the extension of each nation or region in respect to a country which has registered and launched the object into space.
Enforcement of intellectual property rights relating to creations that were made in outer space but also used in one or more territories of the Earth which in general is governed by national or regional law whichever is concerned.
This principle is based upon quasi territoriality principles which are based upon space object with a matter of jurisdiction as well as the questions based on the applicability of law with respect to the space object along with the Infringement of Intellectual Property which will be considered in outer space as if the infringement has occurred within the territory of that particular country.
Article 5 of the Paris Convention provides for a certain limitation on the exclusive rights conferred by patent in the public interest, if a ship, aircraft, or land vehicle temporarily or accidentally visits foreign counties and have a patented invention on board, the license on the patent in force in this country is not required to avoid infringing the right as temporary will be provided to that sate for the right concerned.
The Doctrine of temporary presence is applied to the spacecraft as mentioned under Article 5 of the Paris Convention which exclusively mentions only vessels, aircraft, and land vessels. Space objects do not fall under this category such a provision, there is a temporary presence of those elements of a space station that is concerned with launching or returning in a foreign country will not be exempted from, the Patent infringement.
Intergovernmental Agency shed information regarding the temporary presence of an article which will be in relation to an outer space activity as mentioned under Article 21(6). According to the Article it was held that temporary presence in a territory of a partner state including the components of the flight’s elements which shall include the transit between any place on the Earth surface and an element of the Space Flight system registered by another partner state or ESA shall not firm the basis for proceeding by the first patent state for the patent infringement from the other member state.
The object which is patented will be transferred to and fro from the Space Station via a launching site this object would not infringe the patent which is enforceable at the country of the launching site.
The Subject matter of pa the state is protected in more than one of the European partner states may not be the same as there are general difficulties which are found for the enforcement of intellectual property in outer space as per Article 21(4) of the IGA and it would be more difficult for the infringer to prove the evidence for all alleged infringement.
The said invention which is made in the Space Station or by another person who is not from that nationality, a partner will not be allowed to apply its law concerning the secrecy of invention so as to prevent others from filling an application of patent which has information which is classified and on the basis of the national security interest of that said nation is mentioned under Article 21(3) of IGA.
National laws first require that patent law has to be first applied in the state and then the inventor or the state in which the invention is made there is a concern that without such a measure the invention involving natural security will be disclosed in a foreign county by the way of filling of a patent application abroad If such a restriction of patent rights is imposed upon in the international space station by the member states this would have a negative effect on the sharing and collaborating elements of the state who are party to the International Intergovernmental agreement.
Each state should be provided with access to space exploration irrespective of the development of that state and also there will be non-appropriation by the claim of sovereignty by any nation and all nations shall be equal to use the space exploration for their own research and understanding. Declaration for the peaceful benefit of all developing countries 1996 which provide that all countries irrespective of their degree of scientific, technological advancement shall be able to use the outer space exploration and no state shall put any restriction on another state and there should be an agreement for sharing amongst them. When two or more states launch an object into outer space as per Article II of the Registration Convention the states have to mutually decide over whom will have the quasi jurisdiction over the launch of that space object Harmonious trade usage agreements should be signed amongst the member states such as the Intergovernmental Agreement to strengthen the cooperation and to provide mutual benefits to all the member states of the agreement, a sharing agreement without infringing the rights of the member state is provided under Article 21(6) of the Intergovernmental Agreement.
Look into the interest of the developing countries appropriate measures to be taken by which free access would be provided to the researcher to access scientific data and to guarantee sharing and promoting of knowledge with a view to enhance scientific progress, to place scientific outer space data at the disposal of developing countries to foster and permit the share of the results in the most balanced and equitable manner, reaching an agreement with regards to patenting of a product or the object in outer space. Excluding others from the freedom of exploration in outer space, obtaining intellectual property rights over another. the patent system in the orbit would prevent the third parties from using the orbit for satellite telecommunication purposes The World Commission on Ethics of Scientific Knowledge and Technology (COMSET), 1919 believed that every space policy must be based upon the concept of mutual and reciprocal benefits while safeguarding the fair competition and the principle of return on investment.
Author: Sahil Singh– a student of Modern Law College (Pune), in case of any queries please contact/write back to us at Khurana & Khurana, Advocates and IP Attorneys.