From The IP Kat:
The commercialisation of activities in outer space is booming. Space launches by private actors are skyrocketing (I know: terrible pun), and space tourism is expected to be an industry in full swing soon.
This change in the landscape of outer space raises the question whether intellectual property policy is on top of things in this area. A report on this question published last month by University of Exeter researchers . . . suggests that intellectual property policy lags behind the space industry, to the extent that it is likely to be a barrier for innovation and growth in the sector.
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The existing regulatory regime at the national level is built primarily upon the international legal framework developed in the 1960s-1970s, when the government had a monopoly over space-related technological capabilities. With the rapid increase in private commercial space activities, these traditional legal frameworks may not be well equipped to serve the flourishing of space technology as new business opportunities arise and diversify.
The privatization of space activities puts into bas relief the application of intellectual property rights in outer space, as organizations are keen to safeguard costly commercial enterprises. This issue was less pressing in the past for two main reasons. First, the commercial implications of outer space exploration were not as well-defined as they are today. Second, as space exploration was handled by state actors collaborating with each other, governments were able to settle issues around the subsistence, ownership and infringement of intellectual property by using inter-governmental agreements tailored to their needs . . . . These agreements serve to fill gaps existing at the intersection between space regulations and intellectual property laws.
Inter-governmental agreements are not available to private organizations, who can only manoeuvre within the framework of national law (and international regulations when they have been adequately implemented at national level). And, unfortunately, for private actors, there is currently no international agreement harmonizing national policies on what or how intellectual property rights apply in relation to assets created in or extracted from space. This is particularly problematic, considering that the space industry inherently involves cross-border activities.
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International space law (as formulated across various space law agreements and treaties) is premised on the idea that outer space is what we could call a ‘non-jurisdiction’; it belongs to no individual state nor can it be annexed, owned, or colonised directly or indirectly by any one country. By contrast, intellectual property rights are territorial in nature and are defined by jurisdictional boundaries.
Moreover, intellectual property rights are inherently based on the notion of appropriation. Intellectual property rights confer legal titles, often in the form of ownership, excluding others from accessing or using the relevant protected subject-matter. By contrast, international space law provides that outer space and its content may not be appropriated by anyone.
Link to the rest at The IP Kat