Introduction
Over time, there has been a gradual increase in space exploration activities, conducted by both national space agencies and private commercial entities. To regulate these activities, an Outer Space Treaty (OST) was adopted in 1967, with the primary intention of promoting peaceful endeavours in space. The treaty includes Article 8, which addresses the jurisdiction and ownership of objects launched into outer space. According to this article, the state from whose registry an object is launched into outer space shall retain jurisdiction and control over that object. However, under Article 8 the ownership of the object has been differentiated from the registry state, where ownership does not compulsorily rest with the state of registry and might belong to different public as well as commercial entities. This bifurcation results in conflicts between the registry state and ownership entities, where the ownership entities may not be able to potentially utilise their Intellectual Property Rights (IPR) due to minimal jurisdiction and control over their object.
Considering the same, this blog will provide a detailed analysis of Article 8, highlighting the current cases and actions taken at the international and domestic levels in similar instances. Furthermore, the blog will propose solutions that can help establish an equilibrium between IPR disputes involving the manufacturing entities and the registry country.
Article 8 of the Outer Space Treaty.
Article 8 of the OST states that a state party to the treaty from whose registry (An entry into which a state registers the details regarding the object) an object is launched shall retain jurisdiction and control over such object or any personal launch thereof. Further, the treaty talks about the ownership of the object launched into outer space, which is retained with the manufacturing entity, even if the same includes an object or its components landed or constructed on a celestial body or if they return to earth after existing in space. Moreover, to protect registration rights, the objects that are found floating in space and are not clear regarding their registry status shall be returned to such country which lays claims upon it after furnishing its registry rights as requested.
The main issue under Article 8 pertains to the difference between registry rights and ownership rights, as the country from which an object is launched and recognised as a state of the registry has jurisdiction and control over the object not just in space but also on Earth and can lay claim to any unrecognised objects found in space. The use of words such as “jurisdiction” and “control” under Article 8 implies that the legal authority, as well as liability arising from the object, rests with the state, further the physical possession of the objects, containing the rights upon its operation and activities such as alteration of trajectory and space experimental maneuvers rests with the registry, which ultimately results in providing the authority as well as IPR rights upon new inventions and techniques to the registry state.
However, the object’s owner is distinguished under Article 8 and as per the international IPR laws like Trade-Related Aspects of Intellectual Property Rights (TRIPS). Article 27(1) grants patent rights to the patent holders over any “product or processes”, defining patent holders according to the Black Law Dictionary comprises an individual or entity (including the owner of the object) possessing the legal rights to the patent, including the ability to sell or use the product or process as further outlined in Article 28(1) of the TRIPS. In the context of commercial activities, if a space entity invents an object and launches it into space, holding IPR rights over its usage and operation, a potential conflict could arise with the rights of the registry state under Article 8, which grants control over the object. Moreover, the rights conferred to the registry state to oversee the manoeuvres and operations of the object may conflict with the patent holder’s rights over the processes derived from the object.
The Cases and the Measures Adopted
Until now, no specific cases have involved disputes between a registry state and an ownership entity, mainly due to the dominance of nationalised space agencies like the National Aeronautics and Space Administration (NASA) and the Indian Space Research Organization (ISRO) in outer space activities. However, with the emergence of private space companies such as Space X, Blue Origin, and Agnikul Cosmos, the likelihood of disputes, especially concerning IPR, is increasing.
For instance, the American private space entity Space X is involved in innovative technology of reusable rockets, where its Falcon rockets became the first to recover the first-stage rocket booster and re-use it. Moreover, various technologies involved in these rockets such as solar array management, modular chassis configurations, and methods for stacking and releasing spacecraft are also held by Space X under patent protection.
However, issues could arise when this patented technology and control over these patented processes conflicts with the control rights of the state. For example, in a hypothetical situation when Space X uses a Falcon 9 rocket to carry payloads into outer space, Article 8 would come into play, where Space X would be considered the rocket’s owner, and the United States of America (U.S.A.) would be the registry state. As already discussed, the registry state can exert control and jurisdiction over the operations of Falcon X, where even if Space X wants to use its patented technology well within its IPR rights, the same may be deprived if it conflicts with the interest of U.S.A., which may potentially lead to violation of company’s ownership autonomy.
To counter this issue various measures have been taken at the international level as well as domestic level. For instance, at the international level, a Hague International Space Resources Governance Working Group[1] (often referred to as the Hague Working Group) was established in the year 2016 with the primary goal of creating a framework for responsible exploration and efficient use of space resources. One of the group’s central discussions focused on the creation of a balance between private interests and state jurisdiction. The group recognized the state responsibility under Articles 6 and 8 of OST and its resultant repercussions on the IPR rights of private entities. The working group suggested the creation of an equilibrium between registry state control and private companies by amending Article 8 of OST. Further, the group proposed the creation of international standards for IPR protection in space, where all international frameworks for space resource utilization and countries signatory to respective frameworks must respect IPR rights.
Moreover, with regard to the measures adopted at the domestic level, there are countries like the U.S.A. and Luxembourg, which have adopted laws to control private space exploration. The U.S.A. adopted the United States: Commercial Space Launch Competitiveness Act (CSLCA) in 2015 to promote innovation and competitiveness in the U.S.A. commercial space sector and Section 402 of this act directs the president to facilitate commercial space exploration by its citizens (containing private entities). Furthermore, section 402 provides the removal of government barriers so that private companies operating in space can use and own the resources as well as the methods devised by them through their space activities. Moreover, to regulate all these activities, the existing power of the Federal Aviation Administration’s Office of Commercial Space Transportation (AST) was widened to ensure that they operate within the legal framework such as the IPR laws of the U.S.A. and that there is no further dispute between the registry state and the private entity.
On similar grounds, the Law on the Exploration and Use of Space Resources, also known as the Space Resource Law, was passed by Luxembourg in 2017, which provides a legal basis for private ownership of space resources. Article 1 of the Space Resource Law provides the appropriation status to the space resources and Article 4 confers the appropriation power to an operator including a private entity if the same contains a ministerial authorization. The word appropriation used under Article 1 can further be interpreted to include exploring, extracting, using, and selling of space resources and processes devised in space, which ultimately helps in the protection of IPR rights of private space entities. Additionally, to maintain a streamlined relationship between the registry state and the private space, entities like the Luxembourg Space Agency (LSA) was formed which actively supports private companies engaging in space activities.
The Solutions for Maintaining Equilibrium Between Private IPR Rights and State Jurisdiction.
To promote the balance between IPR rights and state jurisdiction this article proposes solutions such as an amendment to Article 8 of the OST, the creation of a global framework on IPR in space, and the establishment of an advisory board on a global space IPR framework.
Amending Article 8 of the Outer Space Treaty
Article 8 of the OST, which distinguishes between the registry state and the ownership entity needs to be amended to clarify the respective rights and control of a private entity and state. The same can be achieved with the adoption of a language that explicitly distinguishes between the ownership of technological innovations (protected under IPR laws) from operational control that pertains to safety, security and compliance with international obligations, wherein the former can be conferred to any private as well as public entity, while the later can only be limited to the state. Moreover, the amendment could establish a dual licensing model, containing dual licensing agreements, where the private entities can hold IPR for their technologies while the registry state can be granted state-specific operational licenses, through the clear demarcation of their rights and responsibilities in these agreements.
A precedent for this amendment can be found in the Convention on International Civil Aviation (Chicago Convention), where Article 1 grants each contracting state complete and exclusive sovereignty over the airspace above its territory. However, despite this sovereignty, private airlines are allowed to operate based on the adoption of rights such as freedom of air. Additionally, the Chicago Convention allows private airlines and aircraft manufacturers to protect their aircraft designs, structures, and propulsion technologies under the IPR laws, thereby providing a rational framework that protects both state sovereignty and private entity rights.
Formation of Global Standards on IPR in Space
Currently, there are no global standards that regulate and control the protection of IPR rights in space. Article 1 of the OST denies any country’s sovereignty in space and mandates the usage of space activities for the benefit of all mankind. Along the same lines, the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of all States, taking into Particular Account the Needs of Developing Countries, (1996), expounds on the exploration and use of outer space for peaceful purpose, which should be based on equitable and mutually acceptable principles. This means that the use of space resources should not result in excessive benefit to one country and disproportionate loss to others.
Furthermore, current IPR laws are based on the principle of territoriality, which does not apply to space. From the observation of these laws, it can be inferred that the present sphere of IPR in outer space activities is confined to state operations, which are bound by the principle of mankind’s benefit. This framework largely ignores the growing engagement of private entities in space, which are driven more by profit motive than mankind’s benefit. IPR is a crucial aspect of such private engagement, and the lack of clear regulations in this area causes the formation of a legal grey zone, necessitating the formation of International IPR standards for space activities, which could establish clear criteria for determining patent ownership in space activities.
The creation of IPR standards for space can be modelled after the TRIPS agreements or through the adoption of an independent multilateral agreement between the participating countries. A precedent for such an independent framework can be observed in the International Convention for the Protection of New Varieties of Plants (UPOV Convention), established in 1961, which protects the rights of the plant breeders who develop new plant varieties. The UPOV Convention allows member states to grant Plant Breeders Rights (PBRs), a specialized form of IPR. This convention was formed independently of the TRIPS convention but operates in parallel with it. A similar approach can be involved in space IPR laws, where a space sector-specific IPR convention can be formed, to operate in parallel with TRIPS.
Establishment of an Advisory board on International Space IPR Framework
The above-proposed amendments and standards can be practically implemented by establishing an advisory board, made for the creation of an international space IPR framework. The advisory board could be composed of experts in space laws, IPR laws, officials from the United Nations Office for Outer Space Affairs (UNOOSA), and representatives from both private and national space entities. The advisory board would focus on striking an equilibrium between the IPR rights of private entities and the jurisdictional responsibility of states, through regular assessment of the national and international IPR policies and publication of reports proposing adjustments and highlighting the existing loopholes between them.
A precedent of such an advisory board can be observed in the establishment of the United Nations Commission on International Trade Law (UNCITRAL) in 1966 by the United National General Assembly, which was created to harmonize and unify international trade law. The UNCITRAL consists of specialists in international trade law and arbitration. Moreover, the formation of UNCITRAL resulted in the creation of an international trade law framework through conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG) and model laws like the UNCITRAL Model Law on International Commercial Arbitration. Similarly, the proposed space IPR advisory board could develop a global space IPR framework by drafting conventions and model laws, based on the expertise of distinguished professionals from different fields.
Conclusion
Hence, it is evident that while Article 8 of the Outer Space Treaty presents challenges in balancing state control and private ownership in the realm of IPR, a sustainable equilibrium can be achieved through the adoption of specific solutions. As private space entities like Space X grow, a possibility of conflict emerges between registry states and companies regarding the control and usage of patented technologies. Although no major issues have emerged as of now, there are looming possibilities of the same. Measures such as the Hague Working Group and national laws in the form of U.S. CSLCA and Luxembourg’s Space Resource Law try to address this. The described solutions in the form of an amendment to Article 8, establishing global IPR standards for space, and formation of an international advisory board to create an equilibrium between state jurisdiction and private IPRs can be adopted to ensure equitable and amicable space exploration and innovation.
Abeer Sharma is a second-year law student at Rajiv Gandhi National University of Law, Punjab.
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