Intellectual property in Outer Space: still in the twilight zone

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.

. . . .

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.

. . . .

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

7 thoughts on “Intellectual property in Outer Space: still in the twilight zone”

  1. I have a funny feeling we’re going back to the ‘wild west of space’, where you’ll settle and stake a claim on a plot of planet or a rock floating out in the cold of space. (and there will be rustlers to deal with as well.)

    • More like the “great game” of the 19th century.
      And it’s here already, what with Russia conquering Crimea, China “nationalizing” the South China Sea, everybody who can staking claims to the arctic…

      China isn’t going to the moon “for all mankind” but to prospect. Ditto for India.

      And the US is pivoting from Obama’s “the moon doesn’t matter–been there done that” press release strategy to a more rational “crap, everybody else is militarizing space and preparing for a lunar gold rush!”

      In that respect it’s 1955 all over again.

      The difference is SpaceX and Elon Musk playing D.D. Harriman. If his crew of renegade ex-NASA types really does make Starship a quick turnaround spaceship all those government plans are going to get rewritten real fast.

      In a sense, the recalibration has already started as everybody and their uncle is belatedly trying to figure out reusable boosters, eleven years after SpaceX.

      Between SpaceX and Bigelow, low Earth orbit is going to get crowded real soon. And with the revelation that (duh!) we can build Space elevators with current tech…on the moon.

      Before spacelaw can apply there has to be spacelaw and nothing existing covers what’s coming. All existing spacelaw is about claiming and annexing bodies, nothing about exploiting them.

      Already there are two contending legal theories shaping up. The US position is governments can license operators who would be covered under *their* laws and Luxenbourg’s is that a consortium of ooerators can agree on a framework independently of the earthbound. Short term I would expect the former to prevail, long term the latter.

      Diplomacy will rule the first phase.

      • US law on space exploitation:

        The update to US law explicitly allows US citizens to “engage in the commercial exploration and exploitation of ‘space resources’ [including … water and minerals].” The right does not extend to biological life, so anything that is alive may not be exploited commercially.[3] The Act further asserts that “the United States does not [(by this Act)] assert sovereignty, or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” [3] Some scholars[4] argue that the United States recognizing ownership of space resources is an act of sovereignty, and that the act violates the Outer Space Treaty.[5] As an important reminder, the outer space territory is an international region. No one state has the supreme legal authority to determine matters of international space law. Thus, it is crucial to understand the International Institute of Space Law’s legal power, authority and their position concerning the issue of ownership of outer space natural resources.

        Businessweek has summarized one effect of the legislation as “American citizens could keep anything they brought back from space.”

        • Just you wait until Musk or one of the others plants a new flag and declares themselves a new space nation (as I think a couple people have done with islands.)

          • That why I said “short term”.

            THE MOON IS A HARSH MISTRESS is unavoidable.
            Humans are humans on Earth, Luna, Mars, asteroid belt, or wherever m

            • I’m not sure. Some cultures may keep sufficiently tight control – and closely link the local elites into the Earth based power structure – as to make it unlikely.

              Plus “Moon” is in part Heinlein’s take on the American Revolution and that is only one of the possibilities. The USA went one way but Canada, Australia and New Zealand took another course and maybe more sensible policies would prevail.

              • The tighter the Earth powers squeeze, the stronger the urge to break away will be, making independence an even more sensible approach.

                (That was the key point of Heinlein’s premise.)

                Last I looked, Canada, Australia, and New Zealand are independent nations. The road talen might be different but the end point is similar. In the long run, new societies want to run themselves instead of being subservient to a (very) distrant metropolis.

                Empires of colonization sooner or later end up splintering.
                Whether it be Greece, Spain, England, or NorthAm.
                Any Lunar or Martian or whatever colony will only be subservient in the short term.

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