Intellectual property in Outer Space: still in the twilight zone

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 [to which this Kat contributed] 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. Read on for more.

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 (see here for example). 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.  

In 1997, the World Intellectual Property Office conducted a consultation to register the interests of national governments in harmonizing questions of intellectual property rights in space (here, para 35). At the time, consulted states declined the offer, pointing to the lack of need for harmonizing measures, only for  the international position to change two years later when a gathering of states agreed, at a conference held by the United Nations, that international consensus on the treatment of intellectual property in space would be welcome (here, para 37). To date, however, any such international policy, consensus, or agreement is yet to be formulated.

The application of intellectual property rights in relation to activities in outer space is a divisive question amongst policy-makers and scholars. This division stems from a fundamental contradiction between the spirit of international space law and the nature of the intellectual property law framework.

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. This non-appropriation principle is contained in the 1967 Outer Space Treaty (Article 2) and the 1979 Moon Agreement (Articles 4 and 11).

The ‘non-appropriation’ principle not only would apply to the territory itself but also to the objects or knowledge it contains. The interpretation and scope of the non-appropriation principle is intensely debated, notably in relation to intellectual property rights.

Some argue that the non-appropriation principle extends to all things created in or extracted from outer space activities, and that it rules out any application of intellectual property rights to such material. Others are in favour of a narrow interpretation, allowing the appropriation through property or intellectual property rights of objects or knowledge when it can be extracted from space. Claiming ownership over objects or knowledge that have been extracted from outer space is no longer an appropriation of space (as a territory) because these objects are technically no longer ‘in’ or ‘part of’ outer space [or so this argument goes].

Those in favour of a narrow interpretation of the non-appropriation principle point to the fact that private investment in space activities must be incentivized, a claim familiar to intellectual property lawyers.

Those arguing against this position stress that appropriating resources or knowledge extracted from space through intellectual property rights remains a form of appropriation, albeit indirect. This type of appropriation risks blocking access to vital knowledge, and eventually to outer space itself, by countries that do not have the capacity to engage and compete against current space-faring nations, such as the United States, Europe, Russia or China. Commentators talk of a risk of recreating earth-style colonization in outer space, where a handful of countries hold sufficient knowledge and expertise to outpace the rest of the world in exploiting these ‘new lands’.  

The current lack of interaction between the international law of outer space, and intellectual property law emerges as a major barrier against investment and innovation to the extent that it fosters uncertainty in the application of intellectual property rights. This sentiment was shared by the representatives of key UK space organizations at a recent event held by University of Exeter researchers  on 5 June 2019 June 2019 (see here for a report on the event).  

To address this issue,  several states have reformed their national laws to confirm the eligibility of subject-matter created in or extracted from space for intellectual property protection. The aim here is clear: encourage private investment in space exploration. This is the case of the United States, for example (see changes to  US law in 1984, 2015 and 2018, respectively here, here and here).

The United Kingdom has not yet enacted any such legislation. This is so, despite the fact that it enacted the UK Space Industry Act in 2018, to regulate space activities taking place in the UK (see, here). Nevertheless, the UK (very) recently identified the space industry as a strategic economic sector, announcing the creation (which is in fact a re-establishment) of a National Space Council to promote critical national interests in outer space activities (here).

Will we see work on IP and Space done by the UK Intellectual Property Office and the new National Space Council? Only time will tell.