Lost in Space: With the Growth LEO Satellite Constellations & the Space Economy, What Happens to IP Rights in Space
Man’s propitious journey as a spacefaring civilization began during an unfortunate chapter of human history. Depending on how the border of space is defined, humanity’s first foray into space can be given one of two dates. On June 20, 1944, the German V-2 rocket MW 18014 launched from Peenemünde, on the Baltic coast, and reached an apogee at 176 km.[1] This launch crossed the Karman Line, or a 100 km altitude, which is generally recognized as the border of space.[2] This was a suborbital flight with a parabolic trajectory.[3] The first object to enter orbit was NASA’s “Bumper-WAC” in 1949.[4] The “Bumper-WAC” was a two stage rocket that consisted of a JPL WAC Corporal missile sitting atop a German-made V-2 rocket.[5] Upon launch, it climbed to an altitude of 393 km (244 miles).[6] It was the first man made object to reach low earth orbit (LEO), which is generally agreed to start at an altitude of 250 km above Earth’s surface.[7] Since then, there has been Sputnik, the space race, Luna, Gemini, Apollo, a man on the moon and several unfortunate disasters. Recently, it is evident that man has not relinquished its lust for the stars. As of May 4, 2024, there are over 9,900 active satellites.[8]
LEO constellations are all the rage. Everyone is making one. SpaceX’s StarLink and Amazon’s Kuiper project have become household names. According to McKinsey, the outer space economy was worth $630 billion in 2023, and, adjusted for inflation, the global space economy is projected to be worth $1.8 trillion by 2035.[9] The further commercialization of space will bring the status of intellectual property rights in space to the forefront. Man made objects in space are at the apogee of human technological achievement and therefore replete with intellectual property.
According to The Outer Space Treaty, that was signed in 1967 and is considered the foundation of international space law, “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty.”[10] As of 2024, 115 countries are parties to the treaty, including all major spacefaring nations and another 22 nations are signatories.[11] However, patent protection is granted by nations, as function of their territorial sovereignty. Under the auspices of such a territorial legal regime, can a nation claim patent protection or prosecute patent infringement in space, where there are “no claims of sovereignty?”
According to the World Intellectual Property Organization (WIPO), the applicability of national/regional patent law in outer space is often raised.[12] While the state where a space object is registered retains jurisdiction over it, the question of whether national laws extend to objects registered and launched into outer space remains an open question.[13] While there are no explicit international rules, under several international agreements regarding international space projects, registered space objects are treated as quasi-territory for liability and intellectual property purposes.[14] The legal status of physical property such as spaceships and satellites in outer space has been a recurring topic in the United Nations, bilateral and multilateral agreements, and studies. Under the Commercial Space Launch Competitiveness Act, commonly known as the SPACE Act of 2015, the United States, with other nations following suit, has taken the position that it allows US industries to “engage in the commercial exploration and exploitation of space resources”, but it 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.”[15] While focused on mining in space, such laws turn space into the old commons or the high seas.[16] This posture will likely set up nations for conflict and tragedy.
Fundamentally, several key questions need to be resolved regarding the status of intellectual property in outer space. There has been no international consensus on the status of intangible property, such as intellectual property in outer space.[17] The Outer Space Treaty, the literal foundation of space law, holds that 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.[18] These fundamental principles arguably militate against the licensing, protection and enforcement of intellectual property rights.[19] As the enforcement of intellectual property rights would limit access to knowledge and information derived from space activities and the freedom of exploration and use of outer space.[20] Further, Article 5quater of the Paris Convention, limits the exclusive rights conferred by a patents, regarding “vessels” and other means of transportation, could be construed to apply to objects in space.[21] This could preclude the enforcement of intellectual property rights, even if the infringing object is temporarily within a signatory’s territory.[22] Patents are territorial. How and under what jurisdiction would patents be enforced or disputes resolved for intellectual property matters in outer space?[23]
As the commercial space race heats up, the treatment of intellectual property in outer space will become a perennial issue. Historically, intellectual property law has changed in the face of technical disruption, such as the advent of the printing press and the internet. As humanity boldly goes where no man has gone before, intellectual property laws must be created to meet the needs of this new epoch.
Footnotes
