Intellectual Property Challenges Posed By Space Exploration
In 1957, the Soviet Union launched the satellite Sputnik 1 into space, marking the beginning of human space exploration.[1] Four years later, the Soviet Union launched Yuri Gagarin into space to orbit the Earth, making him the first human in space.[2] Roughly eight years later, American astronauts Neil Armstrong and Buzz Aldrin walked on the moon.[3] In the three years that followed, the United States went on to complete six crewed missions to the moon.[4] As chronicled by this timeline, space exploration got off to a rapid start in the late 1950s and 1960s, a period appropriately labeled as the “Space Race.” Such burgeoning exploration was concurrently ushered in with a series of treaties, negotiated through the United Nations (UN), to regulate human space exploration.[5] Although the bounds of human exploration into space have not been expanded since the Space Race era, there is an ever growing need today for a revamp of the limited laws governing space exploration—specifically as they pertain to the issue of intellectual property.
The current framework of space law dates back to the middle of the Space Race in 1967, when the United States, the Russian Federation, and the United Kingdom were original signatories to the Outer Space Treaty.[6] In the years that followed, these nations also signed the Rescue Agreement (1968), the Liability Convention (1972), the Registration Convention (1974), and the Moon Agreement (1979).[7] Together, these five documents encompass the basis of international space law we have today, however none directly address the issue of intellectual property rights in space.[8] Art. VIII of the Outer Space Treaty extends a State’s jurisdiction to State-registered objects launched into space.[ mfn]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Oct. 10, 1967, 610 U.N.T.S. 843. [/mfn] This would mean the intellectual property laws of a particular State would govern aboard a spacecraft registered to that State and also apply to the development of additional intellectual property on that craft.[9] Under the Outer Space Treaty, each part of the station that the collaborating agencies to the ISS contribute to will fall under the jurisdiction and intellectual property laws of the respective State in which that part is registered.[10] Thus, new intellectual property developed in the Canadian section of the ISS would fall under Canadian law. But what if the intellectual property was developed across multiple sections of the ISS? Which law would govern?
Furthermore, the current framework also poses import and export issues as patents are often used to protect the rights of a patent holder from unauthorized importation. An astronaut that carries a patented technology from one spacecraft to another, each under separate jurisdictions, could accidentally infringe upon or expose that technology to an unprotected jurisdiction at the risk of the patent holder.[11] As of the writing of this blog post, there are currently seven people occupying the ISS, including four American astronauts, two Russian astronauts, and one German astronaut (European Space Agency).[12] Considering the limited number of people that occupy the ISS on a daily basis, the transient nature of their occupancy whilst working across various parts of the station, and the technology that is likely used aboard spacecrafts, such inadvertent patent infringement likely occurs often.[13]
Finally, the growing influx of private exploration and commercialization into space, exhibited by companies such as Blue Origin, Space X and Virgin Galactic, further exacerbates the issues surrounding the current limited legal framework. There is an inherent disconnect between the ethos of the Outer Space Treaty—that space activities should be protected to benefit all humankind— and intellectual property— to protect individual rights of patent holders.[14] In fact, current space law generally denounces claims to extraterrestrial territories or private property ownership in space.[15] The originating treaties, conventions, and agreements were all signed in an age where government actors were the only entities taking part in space-related activities. As technology advances and space travel becomes cheaper, more and more private companies will be engaged in space exploration and travel, with the expectation that their innovations outside this world will be protected.
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