Despite the fact that space technology has been, for a long time, one of the most advanced technical areas, and outer space activities are, in fact, the fruit of intellectual creations, it is only in recent years that intellectual property issues are raised in connection with outer space activities. Some of the reasons are that space activities are increasingly shifting from being state-owned activities to becoming private and commercial activities. Further, an increasing number of space activities are operated under international cooperation schemes, which depend on a simple, uniform and reliable international legal framework.
As regards inventions made and/or used in outer space, one of the issues frequently raised is the applicability of national/regional patent law in outer space. While patent protection is subject to the applicable territorial legal framework, according to international space law, the State on whose registry the space object is carried retains jurisdiction and control over that space object. The question arises whether the territorial jurisdiction under intellectual property law permits the extension of each national (or regional) law to the objects which the respective country has registered and launched into outer space. In the absence of explicit international rules, under a number of international agreements concluded with respect to international space projects, registered space objects are treated as quasi-territory for the purposes of intellectual property.
As prescribed in Articles I and II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), the exploration and use of outer space for the benefit of mankind and the non-appropriation of outer space by any nation are fundamental principles under international space law. While recognizing the importance of intellectual property for the exploration of outer space and the further development of science and technology, questions have been raised as to whether the protection and enforcement of intellectual property rights may conflict with the said fundamental principles in terms of access to knowledge and information derived from space activities and of the freedom of exploration and use of outer space.
Another issue relates to the interpretation of Article 5ter of the Paris Convention for the Protection of Industrial Property, which provides for certain limitations of the exclusive rights conferred by a patent in the public interest in order to guarantee the freedom of transport (doctrine of temporary presence). The question arises whether the doctrine of temporary presence also applies to space objects, for example, in the case of the transport of patented articles to or from a Space Station through a launching site in a foreign country.
It is expected that technical and financial input from the private sector will become more and more important in the future development of space activities. Although a number of public policy tools can be envisaged to attract the participation of the private sector, intellectual property protection will play an important role in developing successful space business models involving public/private collaborations.
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World Intellectual Property Organization
- Meeting of Consultants on Inventions Made or Used in Outer Space, March 6 and 7, 1997: Discussion paper prepared by the International Bureau [PDF]
- Exceptions and Limitations to Patent Rights (see “use of articles on foreign vessels, aircrafts and land vehicles”)
Other Intergovernmental Organizations
- United Nations Office for Outer Space Affairs (OOSA)
- UN Treaties and Principles on Space Law
- United Nations/International Institute of Air and Space Law
- United Nations Educational, Scientific and Cultural Organization (UNESCO)
- World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) - Ethics of Outer Space
- Organisation for Economic Co-operation and Development (OECD)
- Futures Project: Space Commercialization
- International Institute for the Unification of Private Law (Unidroit)
- European Space Agency (ESA)
- European Center for Space Law (ECSL)
- National Aeronautics and Space Administration (NASA)
- Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, and the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station (1998 IGA Agreement)