The UK space sector is growing rapidly - in real terms by 3.3% per year, on average, since 2009/10, according to the UK Space Agency's Size and Health of the UK Space Industry 2024 report. Private companies are entering this domain at an astounding pace, motivated by profit, as well as scientific progress. The development of a legal framework that provides adequate protection of Intellectual Property Rights (IPRs) in outer space is therefore becoming increasingly important.
Surprisingly, at present there are no international laws, treaties or conventions that aim to explicitly address the protection and enforcement of patents, trade marks and copyright in outer space. In this article, we consider what laws are in place, the gaps at the intersection of IP and international space law and how they might be filled.
What are the main types of IPRs relevant to outer space?
Patents
Patents protect new inventions. They are territorial rights, which must be registered. They grant the owner the right to stop others from doing certain acts (eg making, using or selling the invention) in the jurisdiction for a limited period of time in exchange for publishing details of the invention. Patents can enable companies to protect their core products and processes and prevent competitors entering the field, as well as enabling them to partner with other companies and share technology.
Patented products and processes are already used in outer space and there will be increased scope for this in future. Similarly, there is considerable scope for new patentable inventions to be made in outer space.
Trade marks
A trade mark is a badge of origin. A registered trade mark can generally consist of any sign capable of distinguishing the goods and/or services of one undertaking from those of others. It is a territorial right that can take many forms, including words, slogans, logos, shapes, colours and sounds. Where a trade mark has not been registered, but has been used fairly extensively, the owner may still have certain rights (called unregistered, common law or passing-off rights).
In the context of space tourism, in particular, trade marks will be utilised by the key commercial players, such as SpaceX, Blue Origin and Virgin Galactic, to protect various elements of their branding (company name, logo, etc.) and advertising as deployed on Earth and on their spacecraft and space stations. Imagine a branded restaurant on board a space station, for example.
Copyright
Copyright protects original works of certain types including literary, dramatic, musical and artistic works (referred to as "LDMA Works"). It arises automatically on creation. It provides the owner with the exclusive right to do (and prevent others from doing) certain acts in relation to the work eg to reproduce and publish it.
Although copyright is a territorial right in the sense that it subsists on a country-by-country basis, works created in one country are often protected by copyright in other countries through international agreements. This distinguishes copyright from other rights such as patents and trade marks (although very well-known trade marks can sometimes also benefit from extended protection).
Copyrightable works are already being created and used in outer space and will continue to be in future, whether these be in the form of photographs, drawings, films, broadcasts, music, literary works (eg records of scientific experiments), databases (of data collected) or other works. With popstars like Katy Perry reaching space aboard a Blue Origin rocket, we might expect new music from beyond the Earth's atmosphere.
Key questions
This all raises several key questions:
- Do Earth IPRs extend to outer space? If so, can an act done in outer space constitute an infringement of an Earth IPR? Since IPRs are territorial, how do we determine which particular IPR is infringed and which country(ies) have jurisdiction to hear the claim?
- If Earth IPRs do extend to outer space, to what extent are other acts committed in outer space relevant to Earth IPRs? For example, does use of a trade mark in outer space count towards genuine use of the corresponding Earth registration?
- Are IPRs created in outer space protected/protectable on Earth and – if so – are there any special rules or conditions that apply?
Before considering these issues, we consider what is outer space.
Where does outer space begin?
Since most IPRs are territorial in nature, subsistence and infringement is largely dealt with on a country-by-country basis. Therefore, it is important to distinguish between activities that are carried out in outer space and activities that are related to outer space but occur on Earth and are therefore subject to the usual rules on territory.
One of the first questions that arises when considering the interface of IPRs and space law is therefore where outer space begins. At what boundary does an object pass from sovereign airspace (potentially under the jurisdiction of one nation) into outer space?
From a scientific perspective, there is no sharp boundary marking the end of the atmosphere and the beginning of outer space - the Earth's atmosphere does not end abruptly, but simply gets thinner at higher altitudes. Some commentators might consider the Kármán line, which is defined as an altitude of 100km (about 62 miles), as the beginning of outer space, but this is not universally accepted.
At present, there appears to be little consensus on this important topic and no clear legal definition of outer space. Experience in the context of international airspace and international waters might help resolve this important issue.
Do "Earth" IPRs extend to outer space?
Jurisdiction in the Outer Space Treaty
Arguably, existing IPRs are capable of extending to objects in outer space. This is due to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (the Outer Space Treaty). While this agreement provides for the so-called "non-appropriation of space" (meaning outer space is "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means"), it also provides that the State of registration of a space object has jurisdiction and control over that object as well as any personnel thereof (see Article 8).
The State of registration is, in turn, governed by the Convention on Registration of Objects Launched into Outer Space of 1975 (the Registration Convention). Article II of the Registration Convention provides that the launching State shall register the space object by means of an entry in an appropriate registry which it should maintain. Where there are two or more launching States, Article II requires them to decide on which country's register any object launched into space will be registered (without prejudice to any agreement concluded between those States on jurisdiction and control over the space objects and any personnel thereof).
The question therefore arises whether the jurisdiction granted to the State of registration under the Outer Space Treaty means that IPRs registered or subsisting in a particular State are also protected on board any space object registered to that State. In other words, if an IPR is registered or subsists in the UK, would that right also be deemed to extend to a space object registered under the Registration Convention to the UK?
If so, then the owner of that right could potentially take action in respect of any infringing use of the IPR in question aboard the space object. On the trade mark side, there would be numerous potential consequences. Use of a trade mark in outer space might count as use for the purposes of trying to defend or enforce the Earth registration. It could lead to a mark becoming generic. Use could potentially also generate goodwill for a passing off claim in the UK.
UK law
Much will depend on how each individual country's IP laws are drafted. UK IP laws tend to extend the scope of each IP right to UK territorial waters and the continental shelf, with there being some uncertainty about whether they also extend to UK airspace and UK registered aircraft. The one exception is copyright, with the Copyright Designs and Patents Act 1988 specifically extending to acts aboard aircraft registered to the UK. Whether this would include spacecraft is unclear.
It could be argued that IPRs protected in the UK should also be protected in any area (or on any object) under the jurisdiction of the UK. If IPRs subsisting in the UK are protected in UK waters, why not onboard UK registered space objects? Absent such an interpretation, IPRs could be used freely in outer space, without redress, which does not seem right. Likewise, any use of a trade mark solely in outer space would not count as proof of use or generate goodwill - again, this does not seem reasonable.
It could equally be argued that IPRs should not extend to space objects without express statutory provision. This is particularly so for patents and trade marks since the legislation does not even explicitly say whether it extends to UK airspace or aircraft, let alone spacecraft.
Other countries
Some jurisdictions have attempted to fill the legislative gap in this area. For example, the USA Patent Act (section 105 of 35 U.S.C) states that any invention made, used or sold in outer space on board a spacecraft that is under the jurisdiction or control of the USA is considered to be made, used or sold on US territory, except where an international agreement between the USA and State of registry provides otherwise.
Similarly, the owners of the International Space Station (the United States, Russia, the specified European government Partners, Japan and Canada) have agreed who has territory as regards IPRs in respect of activities occurring on international space station flights (as well as provisions about secrecy of patents created aboard space station flights).
Special provisions were put in place to prevent simultaneous claims for infringement in multiple European countries because of the involvement of the European Partner comprising various European countries (Article 21, International Space Station Intergovernmental Agreement).
However, all the provisions in the International Space Station agreement would be subject to national law rules about whether IPRs subsisting in the country concerned are capable of extending to outer space objects.
Germany modified its patent laws prior to signing the International Space Station Intergovernmental Agreement to ensure that they could be applied on board any European Space Agency registered module, as detailed in the European Space Agency's guidance on patents and space-related inventions.
With the exception of the USA and Germany (on the patent side), the question of whether IPRs protected in a particular country extend to objects in outer space registered to that country is unclear.
Even assuming they do, there will be complex questions to answer, particularly where different parts of a larger space object are registered to different countries. If an allegedly infringing activity takes place inside a module, does it depend which country that module is registered to for the assessment of infringement (or is it the spacecraft as a whole that is relevant)?
Are IPRs created in outer space protected/protectable on Earth?
Space stations provide a unique research environment and so IPRs are likely to be created there.
Since patents are protected by registration, there is no reason in principle why an invention made in outer space could not be protected by registration as a patent in relevant countries on Earth. The usual rules as to novelty, inventive step and other requirements would need to be met. The individual facts of each case (including whether the invention is made in the course of employment and any agreements in place) would determine who has the right to be named as the owner (and inventor(s)) of a patent.
The same is true of any trade marks conceived in outer space. Unlike trade marks and patents, copyright protection of domestic LDMA Works extends automatically to countries which are part of the Berne Convention or members of the World Trade Organisation through the principles of national treatment, automatic protection and interdependence. This means that, if something is created on a spacecraft, it will be the author's nationality in the majority of cases that determines the jurisdiction of protection and any automatic protection elsewhere.
Where the creation is by a non-protected author (ie someone who is a national or resident of a country which is not a Berne or WTO signatory), then the place of first publication will determine the protection. This could lead to complex questions if a new copyright work created by a non-protected author is first published (within the meaning of the Berne Convention) onboard a space object.
What system might be used to protect IPRs in outer space?
It should be clear from the above that further clarity on the IP position is needed particularly as regards the protection of IPRs in outer space. Legislation which provides that IPRs subsisting in a particular country automatically extend to space objects registered to that country would be a good starting point.
As space exploration and tourism develop, there might be a need for a more complex system such as the stand-alone protection of IPRs in space (without the need for corresponding protection on Earth) and for protection to extend beyond space objects to particular regions of space itself.
On the trade mark side, the simplest way to expand protection to outer space would be to use the current Madrid Protocol system which is administered by the World Intellectual Property Office and provides a single application system for obtaining and maintaining trade mark registrations in up to 122 member countries.
A new protocol could be added to the Outer Space Treaty to amend the accession process to either allow particular areas in outer space (eg Earth's orbit, the moon or large space colonies etc) to become jurisdictions in their own right, or extend national jurisdictions to outer space in some way. Alternatively, an entirely new treaty could be established to govern the exact scope of protection, as well as enforcement mechanisms such as a unified court or arbitration panel for trade marks (and other IP rights).
How might IP disputes in outer space be dealt with?
If new extra-territorial IPRs were to be created, rather than adopting the quasi-territoriality principle to a space object such that it becomes the subject of national law, there will be much more complicated questions of service, jurisdiction, applicable law and the enforcement of judgments to consider, akin to current cross-border litigation.
While particular national courts could still be stipulated by contractual choice of law, jurisdiction and alternative dispute resolution clauses, there could also be scope for the WIPO Arbitration and Mediation Centre to adjudicate over IP-related disputes in outer space (much alike the WIPO-initiated Uniform Domain Name Dispute Resolution Policy, which resolves internet domain name disputes without the need for court litigation). It is also worth mentioning the Convention on International Liability for the Damage Caused by Space Objects, which contains distinct dispute resolution provisions concerning physical property that could provide groundwork for an IPR enforcement (and liability) system to govern outer space activities.
How do existing IP treaties fit in?
There are currently no IP treaties covering IPRs in outer space. Nonetheless, some treaties set out principles that are likely to be applicable to the development of potential legislation in this area. For example:
- The Paris Convention for the Protection of Industrial Property establishes the national treatment principle - this is the idea that each contracting State must grant the same protection to nationals of other contracting States as it grants to its own nationals.
- The Agreement of Trade-Related Aspects of IPRs (TRIPS) sets out the "Most-Favoured-Nation-Principle". It implies that any advantage, privilege or immunity with regard to the protection of IP granted by a member to the nationals of any other country shall immediately and unconditionally be accorded to nationals of all other members.
This should mean that, as countries party to these agreements develop their IP laws in relation to outer space, the impacts should also be felt by those in other contracting States. It should also mean that principles of equal treatment are applied by countries to IPRs in outer space.
What next?
Although some national governments have taken steps to address the intersection of IP and space law, there remains a need for international cooperation and agreement on clear legal frameworks governing IPRs in outer space. Over the next few years, outer space is likely to emerge as a new frontier for IP ownership and a new battleground in IP enforcement at an explosive pace.
