Intellectual Property in Space
Intellectual property (IP) law has experienced many challenges accross its existence such as Internet, Artificial Intelligence and Metaverse, but these are just a merely small challenges in comparisson to those ahead of us. Expansion of humankind in the outer space is inevitable and commercialization of this space is already becoming a business category of itself. Where there is a commercialization, there is also an intellectual property involved.
New IP challenges
There are many legal questions regarding the intellectual property in space. For instance:
- If company makes discovery in space and then it seeks to file a patent or utility model bases on this discovery, where should company filed the patent?
- If a trademark is going to be used in space, for instance in future Moon or Mars colonies, where should trademark applicant seek trademark protection?
- What sort of registry will track trademarks used or registered in space? Will this registry be international and will the trademark protection in space be territory based?
- What authority will set the rules of IP regime in the space?
- Will there be a special classification for goods or services provided in space in comparisson to those marketed on the earth?
- Where should action be brought? Most jurisdictional rules use a domicile of the infringer as a starting point, but what if the infringing activity happens in the space?
Most of these question seem like sci-fi situations but they will eventually need to be answered as the development of commercial activities in space is on the rise and the practical cases may occur very soon.
The obvious solution can be sought in the existing international IP protection system, for instance Madrid system for trademark and Haague system for design, as these can be amended by a new protocols to allow areas in outer space to become jurisdictions for which protection may be requested. These new jurisdictions may be differentiated for instance there can be one for Moon, another for Mars and so on. There can be a new intergovernmental office established which would administer IP registries for these territories and overlook enforcement of IP rights here. World Intellectual Property Office (WIPO) is the best candidate to start such initiative in the near future.
New Space IP Treaty?
WIPO will probably adapt a new international treaty that would govern the main principles of IP in space such as creation of IP rights, registration of IP rights and their enforcement of IP rights in space. Principles from Antarctic Treaty (1961) and a few other international treaties may also apply as there are some common circumstances in these matters. Treaty should also establish bodies which would have juridiction over processes related to this treaty, such as office in which applicants should seek to register their IP (registration office) and also office in which IP owners would be able to seek enforcement of their rights (enforcement office).
This treaty may also establish virtual registration system which will contain database that would give notice of asserted rights in space. However this would only be a temporary solution as the establishment of such database does not solve issues regarding enforcement and protection mechanisms.
All of the theories and suggestions pointed out above are existing only on theoretical level so far and there is no adapted legal framework which would set binding plan to establish system for IP protection in space. However many organizations such as INTA and WIPO, are already starting initiatives towards creation of such system. According to these organizations we will soon see some short term (2030), medium term (2040) and long term (2050) solutions in this area of intellectual property law on international level.