Over the past few decades, the space sector has experienced rapid commercialization. Advancements in space technology and the decreasing costs of space exploration have opened new opportunities for private entities to participate in the development of space commercialization. This shift in the regulatory environment has led to a paradigm shift in the space sector, transitioning from unilateral activities conducted by states to cooperative, international, and contractual arrangements involving various states, and even a trend towards private commercialization. Commercial applications in space sectors, such as telecommunications services, remote sensing, and global navigation services, have proven successful.

Given that space exploration relies heavily on high technology, which necessitates intellectual property rights (IPR) protection, the expansion of space commercialization has further increased the demand for IPRs. However, from a legal perspective, neither outer space treaties nor existing international intellectual property treaties explicitly address IP protection in outer space.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other celestial bodies (OST), establishes the 'non-appropriation principle' in Article II, prohibiting any sovereignty claims over outer space by any means. Consequently, IPRs, as a legal concept grounded in national sovereignty, are not permitted.

The lack of explicit legal provisions for IP protection in space law might deter private entities from investing in commercial space activities, thereby restricting their active participation. Legal clarification for IP protection in outer space remains in demand. Despite discussions on applying IP rules to space activities lasting for several decades, the results have been unsatisfactory.

Legal uncertainties about whether outer space treaties will recognize IP in outer space persist. These uncertainties stem from the conflicts between public and private interests and the territoriality conflict between the legal regimes of outer space and IP. This article explores the increasing importance of IPR in the realm of space law.

International Regime Of Space Law

At the dawn of the space age, various legal issues surrounding space law emerged. The primary concern was the sovereignty of outer space. Other significant issues included jurisdiction over space objects, state liability, and responsibility for damages. Debates arose over whether space should be governed like the Law of the Sea or the Law of Air, and whether it should be freely available for exploration.

To address these problems, the United Nations established an ad hoc committee for the Peaceful Uses of Outer Space (COPUOS). With the help of COPUOS, the UN passed Resolution 1721 on December 20, 1961. This resolution affirmed that international law, including the United Nations Charter, applies to outer space and celestial bodies, and that outer space is free for exploration and use by all states in accordance with international law, and is not subject to national appropriation.

It is important to note that numerous treaties, agreements, and conventions on space law have been enacted to date, forming the foundation of International Space Law. These include the Outer Space Treaty of 1967, the Rescue Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1975, and the Moon Agreement of 1979.

Among them, the most crucial is the Outer Space Treaty. Similar to the Chicago Convention of 1944 for civil aviation, the Outer Space Treaty serves as the charter for space law. As the first international document addressing space law, the 1967 Outer Space Treaty establishes the framework for further development of space law. It establishes broad general principles for the use and exploration of outer space which are as follows:

1. Right to Use Outer Space but Not to Appropriate It
2. Application of International Law
3. Obligation to Use Outer Space for Peaceful Purposes
4. State Responsibilities for Private Activities
5. Liability for Damages
6. Registration of Space Object

Besides these 5 kinds of major treaties there are also five resolutions adopted by UN General Assembly which are equally important relating to outer space. They are a) 1963 declaration of legal principles governing the activities of states in the exploration and use of outer space, b) 1982 principles governing direct broadcasting satellites (DBS), c) 1986 principles relating to remote sensing, d) 1992 principles on the use of nuclear power sources in outer space and e) 1996 declaration on international co-operation in outer space for the benefits of third world countries.

Role Of Intellectual Property In Space Activities

Creating latest methods to research and explore space takes a significant amount of effort and expense in Research & Development (hereinafter referred to as "R&D"). This sector is loaded with numerous intellectual achievements, the rewards of which will benefit humanity as a whole.

To accelerate progress, different non-Governmental commercial enterprises are taking an active interest in this subject, a departure from state-owned entities. These companies' activities include, but are not limited to, space-based remote sensing, direct broadcasting, and research and manufacturing in microgravity environments.

Because of the investment required to execute such activities, as well as the substantial commercialization of such businesses, the companies are always concerned about their property, both material and intellectual. Collaborations between private and state-owned corporations can be seen struggling because creating these technologies requires significant investment. Their contract clearly states that the technology given would be recovered without duplication or misuse in the future. This safeguard motivates corporations to invest more in the advancement of space technology.

Recently, globalization in space activities is another emerging factor for the need of IPR in space. With the help of International Space Station, an increasing number of satellite launches are being carried out through international cooperation schemes involving a variety of participants from diverse countries. As a result, a clear, standard, and dependable international legal framework is required. Despite the fact that domestic IP laws are reasonably well synchronized and different national laws use different concepts.

Major International Conventions

Currently, even though not directly, but there are only few international treaties which are governing IPR in outer space.

Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property (hereinafter referred to as the "Paris Convention"), which is the essential international treaty in the field of industrial property, does not expressly consider the question of inventions in outer space. However, it includes provisions for creating the national treatment principle, the right of priority and common rules, including certain measures for the enforcement of IPR that all the member states follow.

WIPO Copyright Treaty

The purpose of WIPO Copyright Treaty (hereinafter referred to as "WCT") is to protect (i) computer programs, whatever may be the mode or form of their expression, and (ii) the compilation of data or other material (hereinafter referred to as "databases") in any form, which constitute creative works due to the selection or arrangement of their contents.

Article 8 of WTC specifically guarantees the authors' exclusive right to authorize any transmission to the public of their works, including making these works available to the public in such a way that members of the public may access these works from a place and at a time personally determined by them.

Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the "Berne Convention") is the basic treaty in the field of copyright and related rights. The Berne Convention incorporates clauses defining fundamental concepts such as national treatment, independence of protection, and the idea of unconditional protection, i.e., copyright protection may not be subject to any formality.

Trade-Related Aspects of Intellectual Property Rights Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as "TRIPS") does not directly address the issue of outer space. In addition to the principle of national treatment enshrined in Article 3, Article 4 of the TRIPS Agreement affirms that any advantage, favour, privilege, or immunity granted by a member to the nationals of any other country must be extended immediately and unconditionally to the nationals of all other Members.

Outer Space Treaty

Article I of the Outer Space Treaty provides for the so-called "space benefits" clause according to which the exploration and use of outer space should be carried out "for the benefit and interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind." Further, it states that outer space should be "free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law" and that there should be "free access to all areas of celestial bodies."

Article II provides for so-called "non-appropriation of space", according to which outer space is "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means."

Importance Of IPR In Space Regime

Despite space technology consistently being among the most advanced technical fields and outer space activities being products of intellectual creation, significant attention to intellectual property (IP) protection in this domain has only arisen in recent years. This increased focus is largely due to the shift from state-owned to private and commercial space activities. These activities include remote sensing from space, direct broadcasting, and research and manufacturing in microgravity environments.

As commercialization and privatization of space agencies grow, non-governmental entities have become more conscious of protecting both tangible and intangible property. Furthermore, government agencies are now collaborating with private enterprises for space activities to leverage financial and technical resources, leading to more licensing contracts between governmental space agencies and private companies. Private financing is motivated by the expectation that research and development investments can be recovered, underscoring the importance of IP rights protection in encouraging private sector participation in space development.

Globalization of space activities is another reason for the increasing importance of IP rights protection in space. For example, many activities on the International Space Station (ISS) operate under international cooperation schemes, necessitating a simple, uniform, and reliable international legal framework. Although national IP laws are well-harmonized, they still apply different principles, creating a significant need for a uniform legal regime to protect IP rights in space activities.

Advancements in space technology have also opened new business possibilities. For instance, although space tourism is still a dream for the general public, developments in space transportation technology are paving the way. Currently, discussions on IP rights protection for space activities primarily focus on patent protection for inventions created or used in space and copyright protection for databases using space-acquired data. However, if space tourism becomes a reality, trademark and industrial design protection in outer space may also become crucial issues.

Therefore, the importance of a legal regime that protects IP rights in space activities cannot be overstated. The absence of such a regime hinders efficient international cooperation among states and other entities involved in space research. IP rights protection aims to stimulate human creativity for public benefit by encouraging creators and investors to be more active in space research and exploration.

Space Legislation In India

India lacks domestic space legislation, which is a significant gap compared to other countries. Despite being a party to international space treaties and adopting U.N. General Assembly Resolutions on space law principles, India needs comprehensive domestic laws for effective regulation of its space policy. The Parliament of India must take the lead in enacting such laws due to recent developments, including increased private sector involvement and commercialization of space activities, along with various national and global agreements.

The need for domestic space legislation is also driven by the diversification and permanence of India's space activities, requiring a formalized institutional setup and inter-departmental coordination. Clarifying legal norms and rules, both public and private, is crucial, as demonstrated by the experience of developed countries like the USA. Public laws cover authorities' competencies, legal status of space objects, control of space activities, dispute settlement, and security aspects, while private laws include fair trade practices, contracts, intellectual property rights, and more.

The commercialization of space activities further underscores the need for clear regulations regarding Antrix Corporation-industry relationships, private participation in space activities, technology transfer, and product marketing. Therefore, enacting domestic space legislation is urgent, considering the significant changes in domestic and international spheres. India should address legal and commercial issues related to space activities comprehensively before enacting space laws, including minimizing regulatory risks in authorization, licensing, permits, and approvals for communication satellite operations.

Conclusion
Space, often referred to as the "Common Heritage of Mankind," offers significant opportunities for joint ventures involving multiple states and private entrepreneurs to develop innovative applications for the benefit of humanity. However, intellectual property (IP) rights in outer space, particularly inventions made there, present unique challenges.

To resolve conflicts between Intellectual Property Laws and Space Law, a harmonized system could be developed by the international IP and Space Law community under the auspices of UN bodies like UN COPUOS and WIPO. This system should fully comply with the basic principles of international space law and other international obligations. It is crucial that such a harmonized system also considers the interests of developing countries and promotes the ethical and moral use of outer space for the benefit of all humanity.

References:

• https://amlegals.com/interplay-of-intellectual-property-rights-and-space-law/#
• https://www.jetir.org/papers/JETIR1901025.pdf
• https://ili.ac.in/pdf/rm.pdf
• https://www.sciencedirect.com/science/article/abs/pii/S0265964622000108
• https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf
• https://asialaw.tripod.com/articles/ipspacenoichim.html
• https://nickledanddimed.com/2022/05/19/space-laws-what-governs-intellectual-property-rights-in-outer-space/
• https://www.globalpatentfiling.com/blog/IP-Rights-And-Outer-Space