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IPRs and SPACE ACTIVITIES: A DEVELOPING COUNTRY PERSPECTIVE


Dr. V. Balakista Reddy*, S.S.Sagar Priyatham *

ABSTRACT

Intellectual Property Rights (IPRs) is of ever growing importance as a competitive weapon, as a source of revenues, and as a basis for, or a component of collaborative activities in virtually every main industrial sector. However, the obtention and use of IPRs in space-related fields is problematic because of the particularities of space activities and the applicable legal framework, especially as concerns nationally and territorially.

Over the years the concepts of Intellectual Property Rights have changed its thrust from protection to inventors and service to society to protection to investments and trade oriented interests. WTO/ TRIPS regimes indicate the need for new framework for universal justice in face of existing geo-political disparities and economic distribution. Industrial and intellectual activities in outer space need in-depth conceptualization of a proper regime of property rights as it holds promise to the future of mankind.

The space industry is unusual, compared to typical terrestrial activities, because of its research and development funding mechanisms on the one hand, and a sort of fishbowl promiscuity on the other hand. Due to a limited number of programmes and players, competitors on one programme will be partners on another, customers or main contractors on another, subcontractors on still another, in every imaginable combination. Research and development funding is most often from government or intergovernmental agencies, with concomitant contractual reserves on IPRs.                          

SPACE BENEFITS, COMMERCIALIZATION AND NEED FOR IPRs: An OVERVIEW

The space age has begun with the successful launch of the Sputnik I by the former Soviet Union on 4 October 1957. The development and application of space technology has since made a tremendous global impact in diversified fields – social, economic, cultural, and scientific. It has become an indispensable and empowering tool of sustainable development. The use of space technology has been adequately proved in many areas of human activity – communications, television broadcasting, metereology, food production, education, industrial growth, resource management, environmental protection, disaster mitigation, flood and drought management, forest wealth, minerals, navigation, transportation, medicine, and defence. Since then the governments and their organizations have been the major driving force behind new developments in space. Space law today has entered a second stage from the formative period of 1960s and 1970s.

Further, the developments in space technology also led to the emergence of new areas of science like space medicine, space biology etc. The space technology also facilitated the use of outer space for military missions like reconnaissance, early warning, navigation and global positioning systems. Apart from this, various spin off benefits are derived from space activities in the field of new materials, processes and products. Manufacturing of special materials, large crystals, exotic pharmaceutical preparations using the unique environments of micro-gravity and high vacuum are now thought to be a possibility. Permanent space station with or without human presence is a reality of the day for industrial realization of space products. Mining and excavation of asteroids and generation of power from outer space are the possible trends in the days ahead.

Individual and the group of states need intellectual Property (IP) standards in the second generation of space exploitation when space is subject to commercial activities.  The progress of space science and technology will bring further benefits to the world community in the decades ahead.  New inventions, discoveries and products will be made for which individuals; states and international organizations need recognition of intellectual property rights.  As professor, Stephen Gorove says, “This law was needed because many businesses were not going to invest in any activity in space unless they were certain that they were going to get the fruits of their investments”.

The 21st century realized the potential of   space activities and thereby, demonstrated that it has a bright future and holds the potential of a multi-billion dollar industry.  The advent of space station, with the increased orbital time shall provide for all space activities, and this will herald a blossoming of commercial space activities. At this juncture, the role of IPRs in protecting the intellectual property of each company/government etc., is crucial? Although many issues remain to be resolved for the commercial potential of space to be achieved, protection of data and products and ideas and inventions becomes crucial to the industry. The law effecting space activities has evolved over three decades primarily in response to governmental activities. With the shift towards private entrepreneurial space ventures foreseen for the next few decades, the industry will be looking for, and the law will evolve toward, means to protect private creative endeavors in space.

Private entities investing in commercial space ventures will spend large amounts of money over long periods of time before a return on investment can be expected. Those entities shall require assurance that they can protect the ideas and inventions (the intellectual property) resulting from their space station activities. Without strong protection for patents, trade secrets, and copyright, companies will not have the incentive to invest in developing the commercial potential of a space station.

Many nations have systems for protecting the intellectual property on earth. Protection of intellectual property on space will undoubtedly be based in part on the existing international space agreements and in part on extension of national law, practice and regulation. In addition, developing case law nationally and perhaps internationally will set precedents for resolution of intellectual property issues in space.
Concern over protecting intellectual property in space is not new at either the national or international level. But those concerns have been more theoretical than real, at least until recently. Now, increased capabilities to use space in a variety of ways brought such issues to the forefront of attention.   

This paper outlines the various international treaties concerning outer space; it sets forth the intricacies within IPR and space activities; it focuses the role played by third world country in such high investment and high technology field; envisages an urgent need for Space related –Intellectual Property law for India and concludes with some recommendations.

THE EXISTING SPACE LAW REGIME

With the proliferation of space activities the international community has realized the importance of formulating international rules and regulations for the conduct of human activities in outer space. In the early stages, the United Nations played a significant role in the development of international space law by extending the UN charter to outer space. Following the launch of Sputnik-I in 1957,in 1958 the UN General Assembly established an ad-hoc Committee on the Peaceful Uses of Outer space (UNCOPUOS) to facilitate international co-operation in space activities and consider legal problems that might arise in the exploration and exploitation of outer space. The following year the COPUOS became a permanent committee and has since taken several important steps to promote a systematic and orderly growth of space activities.

The COPUOS has been instrumental in negotiating and drafting five international treaties and five UN General Assembly Resolution so far. The committee carried out several scientific, technical, economic and social studies on space technology and its applications. It organized three United Nations conferences on the exploration and peaceful uses of outer space – the UNISPACE 1968, UNISPACE 1982, and UNISPACE 1999. The committee and its sub-committees are currently deliberating on several vital issues, such as the review and revision of the principles relevant to the use of nuclear power sources in outer space; matters relating to the definition and delimitation of outer space; utilization of the geostationary orbit without prejudice to the role of the ITU; and a review of the status of the five international legal instruments governing outer space. The COPUOS is considering the inclusion of commercialization and privatization of space activities in its orbit; the role of non-state agencies in the use, exploration of outer space; space debris; intellectual property rights; space transportation; expandable launchers; releasable space shuttles; and space stations.

The existing legal regime of outer space comprises certain international agreements, resolutions of the United Nations General Assembly, and the international law – including the Charter of the United Nations. The principal treaties, which form the main body of the international space law, include the Outer Space Treaty of 1967, which provides that space exploration shall be carried out for the benefit of all countries, irrespective of their degree of development. It also seeks to maintain outer space as the province of all mankind, free for exploration and use by all states and not subject to national appropriation. The Rescue Agreement of 1968 provides for aiding the crew of spacecraft in the event of accident or emergency landing, and the returning of space objects found beyond the territorial limits of their launching authority.

The Liability Convention 1972 states that the launching state is liable for damage caused by its space objects on the Earth’s surface or to aircraft in flight and space objects of another state or persons or property on board such objects. The Registration Convention 1975 provides that launching states shall maintain the registries of space objects and furnish specified information on each space object launched for inclusion in a central United Nations register. The Moon Agreement 1979 elaborates in more specific terms the principles relating to the Moon and other celestial bodies set out in the 1967 treaty and establishes the basis for the future regulation of exploration and exploitation of natural resources found on such bodies.

In short, the legal principles set out in these five treaties provide for the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of space craft and astronauts, the prevention of harmful interference with space activities and environment, the notification and registration of space activities, the scientific investigation, and exploration of natural resources in outer space, and the settlement of disputes. Each of these treaties lays great stress on the notion that the domain of outer space, the activities carried out therein and benefits accruing from it should be devoted to enhance the well-being of all countries and mankind; each treaty includes elements elaborating the common idea of promoting international co-operation in outer space activities.

The five United Nations General Assembly resolutions have also played a significant role in the evolution of international space law norms. They are:  the 1963 declaration of legal principles governing the activities of states in outer space; the 1982 principles governing direct broadcasting satellites (DBS); the 1986 principles relating to remote sensing; the 1992 principles on the use of nuclear power sources in outer space; and the 1996 declaration on international co-operation in outer space for the benefits of Third World countries. Though not legally binding, these UN principles have significance, for they express the legal conviction of UN members. These principles could influence the states in their conduct of space activities and eventually create an appropriate beginning for further negotiations on legally binding instruments, or establishing customary rules of law.

The 1963 declaration of legal principals governing the activities of states in outer space sets forth the basic components of the international space law, insisting that the exploration of space be carried out for the benefit of all countries. The declaration on principles governing the direct broadcasting satellites (DBS), adopted in 1982, asserts that such use has international political, economic, social and cultural implications. It states that a state intending to establish such a broadcasting service should notify receiving states and establish such a service only on the basis of agreements with those states. The 1986 declaration on principles relating to remote sensing of the Earth from space states that such activities are to be conducted for the benefit of all countries, with due respect to the sovereignty of all states and all peoples over their own natural resources.

The principles relevant to the use of nuclear power sources in outer space, adopted in 1992, recognize that nuclear power sources are essential for some space missions, but provide that such systems should be so designed as to minimize public exposure to radiation in the event of an accident. The 1996 declaration on international co-operation in outer space for the benefit of Third World countries recognizes the importance of international co-operation in the exploration and use of outer space, and also the freedom of states to determine all aspects of their participation in co-operation on an equitable and mutually acceptable basis, taking into account the needs of developing countries .

In addition to the UN treaties and the General Assembly resolutions, there are many other bilateral and multilateral agreements of all kinds. There are also some customary practices, which have been consistently followed by the nations since 1957. For instance, no nation objects to satellites flying over its territory, leading to the conclusion that satellites have such rights. There is no legal definition of where airspace ends and outer space begins, but space activities have been conducted on the basis that airspace extends to the height where planes can fly, and outer space begins where objects can go into orbit.

IPRs AND SPACE ACTIVITIES

“Intellectual property” is a general term that describes certain forms of intangible personal property in industrial and artistic creations.  The four primary forms of intellectual property are patents, copyrights, trademarks and industrial designs.

  • Patents protect the idea behind an innovation.
  • Copyrights protect the literary, dramatic, musical or artistic expression of an idea, though not the idea itself.
  • Trademarks are signs or symbols that distinguish the goods or services of an enterprise from those of its competitors.
  • Industrial designs are works of applied art or works of art applied to industrial purposes.

All forms of intellectual property could apply to the space station. A software developed for the use of technological equipment, logos developed in relation to a space station program, a specific design such as a compact table to be used by the astronauts on the space station. Trade secrets can also apply to the technology developed for the space station.

As one speaker stated during the first workshop on intellectual property rights in outer space which was held in Madrid, said, “ for the purposes of industrial exploitation of outer space, by far the most important form of intellectual property protection is patent protection for technological inventions”.

Intellectual property protection is intended to stimulate the creativity of the human mind for the benefit of the public, by assuring that the advantages derived from the exploitation of the creation will, if possible, benefit the creator himself, in order to encourage the creative activity and to allow investors in research and development a fair return on their investments.

Furthermore, intellectual property protection encourages the publication, distribution and disclosure of the creation to the public, rather than keeping it secret which at the same time encourages commercial enterprises to select creative works for exploitation. Intellectual property rights are playing an important role in all areas of economic activities where research and development are the main thriving factors for the further strengthening of the competitive power of high technology industries in the world market.

Space research and development is a good example of such an activity, since development of new technology can only take place after a relatively long research phase that requires high investments of governments and private industries.  Space development and research is also considered important for the enhancement of the general technologies capabilities of the industry of a country and IPRs are important for protecting and promoting the R&D results.

Another factor that contributes to the importance of controlling technology for space research and development is that most space technologies can be used for dual purposes, namely military and civil. Especially with the emerging trend to develop international cooperation in space development projects, for political and economical reasons, access to space technology and securing investments for all partners should be facilitated by well defined rules on sharing jointly developed technologies.

The different forms of Intellectual Property (IP) applicable to space activities and examples where these are applied, will be discussed hereunder.

The first type of Intellectual Property is the protection of technical innovations by patents. Patents protect relevant technologies resulting from R&D activities, which are of basic importance for private sectors. The issues that patent protection raise with regard to activities in outer space are discussed in a ESCL study on patent protection for inventive activities and/or utilization of protected inventions on board the International space station.

A second relevant Intellectual Property title is the copyright and “driot d’ auteur” which play an important role in satellite broadcasts and the protection of remote sensing data.

The last Intellectual Property is the protection of a satellite’s name (or project) as a trademark, which is important for future commercialization and for creating a certain image.  In particular, trademarks are used to protect the image that is generated by a specific entity.  Space technology, which is tested in one of the toughest environments (outer space) and developed by the best engineers, is then an image, which in turn strengthens the quality image of the producer.

IPO, WTO AND SPACE RELATED IPRs

World Intellectual Property Organization (WIPO) is an intergovernmental organization, which is one of the specialized agencies of the United Nations, is responsible for the promotion of the protection of intellectual property throughout the world. WIPO’s main activities consists of the establishment of International norms and standards in the field of intellectual property; the administration of treaties which embody such norms and standards as well as treaties that facilitate the filing of applications for the protection of inventions, trademarks and industrial designs; and providing industrial property information.

Among the treaties administered by WIPO of special relevance for space activities is the Brussels Convention, which obliges each contracting states to take adequate measures to prevent the unauthorized distribution on or from its territory of any programme-carrying signal transmitted by the satellite.  The distribution is unauthorized if it has not been authorized by the organization- typically a broadcasting organization- that has decided what the programme consists of.  The obligation exists with regard to organizations that are nationals of a contracting state.  The provisions of the Convention are not applicable, however, where the distribution of signals is made from a direct broadcasting satellite.  In 1997, the International Bureau of WIPO conducted a study on the desirability and feasibility of adopting rules and/or recommending principles common to all countries and interested intergovernmental organizations for the intellectual property protection of inventions that were made or were used in outer space.  The study led to the conclusion that there was no need for special legislative provisions concerning the protection of inventions made or used in outer space, but that it was desirable for the International Bureau to give information on the existing protection of such inventions to interested states and organizations.

The Trips Agreement, like the WIPO, covers the entire range of Conventions on intellectual property, i.e. patents and trade marks (Paris Convention), copyright including computer software (Berne Convention), false origin (Madrid Agreement), appellation of origin (Lisbon Agreement), neighboring rights, that is performance and phonograms (Rome Convention and Geneva Convention) and integrated circuits (IPIC Treaty, not yet into force).  The only notable exception is the UPOV Treaty on protection of plant varieties; an exception which is to be connected with the problem of biotechnologies. Compared to the WIPO rules, the TRIPS agreement has eliminated certain loopholes (duration of patents and patentability, trade secrets, protection of software, poor enforcement of national rules) thus responding to the demands of industries (mainly pharmaceutical, entertainment and computer).  However, the most important benefit of TRIPS is the possibility of activating the WTO dispute settlement procedure (DSU).  Here lies the difference from the WIPO.  A WIPO dispute could be settled at the International Court of Justice, but only with the consent of all the parties concerned, whereas at the WTO there is no such a necessity and the crucial decisions, like panels and Appellate Body reports, are made in an automatic way through the negative consensus rule.  Experience so far shows that intellectual property is, after agriculture and related problems, one of the most frequent users of the DSU.

The trade element of space activities is relevant to the WTO Agreements from several perspectives, telecommunications being the most obvious and important one but certainly not the only one.  It has to be remembered that WTO covers 26 Agreements (totaling 40.000 pages) and a very broad range of areas.  It is best defined as a “network of rights and obligations.”  Only a systemic approach can therefore give a full account of the fact that the certain trade related aspects of space activities are already subject to discipline, in certain cases binding commitments, which could be strengthened and extended to multilateral trade negotiations.

With this background in mind, it has to be added that space technologies, including telecommunications, are fully covered by the TRIPS agreement, at least to the extent that they are already subject to commitments in the relevant IPR agreement.

BASIC PRINCIPLES

In order to examine conflicts, which may arise between application of existing Intellectual Property law and the basic tenants of the Outer Space Treaty, we shall first recall the principles as expressed in the various legal instruments, as well as some specific US IP-related legislation and the IP related to Outer Space.

The basic principles underlying national IP laws may be illustrated by one of the most venerable texts on the matter, the United States Constitution (1787).  Article 1, section 8, paragraph 8 states;

“Congress shall have power …to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The first national patent law was enacted in the US in 1790, followed shortly thereafter by a similar law enacted in France.  All modern national patent laws are based on the same basic principles, giving rise to codification of Intellectual Property Rights in the respective countries.

A general definition of IPR emerges from the mosaic of national laws.  IPR is a legal right, which is obtained, exercised, interpreted and judged according to nationally enacted legislation and ensuring case law. It is the right to forbid third party exploitation, or allow such license on terms dictated by the registered IPR owner or his designated successor.

The filed instruments, for example by the claims of a patent, define the scope of the protection of IPR.  The geographical scope of the protection is that of the territory of the state, which has registered the IPR.  In addition, the IPR has a limited lifetime, for example twenty years after the date of filing of patents.

We shall now recall some basic principles of the Outer Space Treaty for comparison.  OST, Article 1, paragraph 1, states, in what has been called the “SPACE BENEFITS” clause:

“the exploration and use of outer space … shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind…”

Outer Space… ‘shall 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…”

“There shall be freedom of scientific investigation in outer space … and states shall facilitate and encourage international cooperation in such investigation.”

Article II continues:

“Outer Space … is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Until this point, the only potential conflict which could be pointed out is that between a monopoly granted to an inventor, on the one hand, and sharing implied by the Space Benefits clause of the OST on the other.  It is important to note that the US has taken the lead in extending the applicability of its national IPR legislation into orbit and beyond, through the “US Space Bill” and the NASA Act.  The US Space Bill promotes progress of science and useful arts by securing a temporary monopoly for US commercial entities, which, would apply, also to space in the same manner that they would receive if their activities were conducted on earth (i.e. in the US).

PROBLEMS for IPR in OUTER SPACE

The contrasts and possible conflicts between space law and IPR law are numerous and manifest.  They are:

  • Space law is extraterrestrial, IPR law is terrestrial;
  • Space law is the same for all states, IPR is different from state to state;
  • Space law is extraterritorial, IPR law is territorial; and
  • Space law says share benefits, IP law grants a monopoly to the inventor.

Which applicable law in outer space?

 In view of the US Space Bill, the IGA and provisions on UN Registry for determining the “nationality” of a space object, it appears that the US IPR law is the law, which is most often applicable. Indeed, in the case where US law is not applicable, it would seem that there is no clear answer, as no other country as of yet passed space-specific IPR legislation.

However, US patent law has no explicit mechanisms to take into account the provisions of the Outer Space Treaty (OST) in the examination procedure leading to the grant of a patent.  This means that the U.S.P.T.O can grant patents in conflict with the basic principles of the OST.
Thus, one of the main difficulties lies in the differences between the various national legal systems and the international law of outer space, as outer space is not subject to appropriation by claims of sovereignty.  In addition, the rules of those countries often vary considerably on the matter of IPRs.

General rules

As an example, consider the situation where;

  • The space station was constructed and financed by an entity of Country A;
  • It is launched by Country by B;
  • The station is administered by persons belonging to Country C and D;
  • Persons belonging to Country E or to Countries E and F carry out the research.

The following decisions can be suggested, based on the criteria of creative and material contribution and on the understanding of the important role that parties’ economic interests play.

If space station, is registered in Country A, then the laws of that country shall be applicable on the station, and the invention is to be recognized in its own territory.  This country is responsible in contributing necessary facilities, so thus the country should have rights to the invention.

At the same time, if Countries E or Countries E and F, carry out the necessary research through the persons belonging to Country E or to Countries E and F, then these persons will be the inventors.  If persons of both countries create an invention, then both countries will have rights to the invention.  Two alternatives for determination of rights to the invention would arise, if persons belonging to one of the countries make an invention.  First, the invention could only belong to the country whose national made it.  Second, because citizens of states E and F conduct research in accordance with the joint programme, both countries shall share the results of this research.  The second solution may be more desirable, because it is difficult to assess the specific contribution of each person in making the invention.

With respect to Country B, from whose territory the space station was launched, the question of its rights to the inventions made on the station shall depend on the cooperation in the venture and on the financial relations between County B and the other participants.  If Country A together with the other participants had paid for launching services of Country B, then Country B cannot claim for any rights to the invention.  If Country B is prepared to reduce the cost of the launch in return for rights to the results of research conducted on the station, then there is possibility of it getting some rights to the invention.  The real solution to this question will depend significantly on Country B’s position.  Only a small number of countries can offer launching services at present.

Questions on the rights of Countries C and D regarding inventions created on the space station are not simple because they also depend on the financial relations between them and Countries A, E and F. Theoretically, two versions of such relations can be assumed.  The first is that Countries C and D provide personnel for management services without payment from other participants.  They may even pay Country A for the right to participate in the activities on the space station. In the latter case, the purpose of participation by Countries C and D in cooperation is to receive minimum access to the results of the research on the station.  There may also be intellectual property rights resulting from such research.  The second scenario is that Countries A, E and F (or one of them) pay Countries C and D for the management services.  In this case there is no reason to allow Countries C and D any rights in the results.

Certain questions may arise such as:

  • Which system of law governs whether an invention on the station is capable of protection as intellectual property?
  • Who is the owner of any intellectual property rights (IPRs)?
  • Under what conditions is the protection of the IPR in the countries involved and in Country G?
  • What law determines the procedural steps and the place of registration of the IPR?
  • Is there an infringement of IPR in a patented process used in outer space?  What law governs this question?

All these queries are yet to be discussed and many more issues that are relevant are bound to come up as the technology develops.  Thus, it is important for all us to converge our expertise in solving these problems. 

Therefore, clearly, there is no one solution to all intellectual property problems arising from international cooperation in space.  It is impossible to regulate all of them in one international agreement.  Most of these problems have several possible solutions, depending on the objectives and interests of the parties and their financial relations.  Accordingly, the choice of one of the several possible models of relations will determine the choice of applicable law in a specific case.  However, at the same time, some of the principle questions might be subject to international agreements.

DEVELOPING COUNTRIES' PERSPECTIVE

The growing dependence on new space technologies has led to an alarming situation for Third World countries whose economies have neither the capital nor the industrial infrastructure to support their own satellite systems.  This leaves Third World countries vulnerable to First World economic and political power, and raises questions about the developing countries’ ability to maintain any semblance of political and economic sovereignty or cultural integrity.  As Jürgen Häusler and Georg Simonis point out, Third World countries’ failure to adjust to new space technologies will continue the cycle of underdevelopment and political and economic subservience. Considering these problems further, Marvin Soroos notes that the growing legal, political and economic challenges generated for the global community by new space technologies cannot be solved by the usual policy approaches based purely on technical or engineering models of economics.

When discussing the legal problems of space commercialization, First World nations agree with the stipulations of the 1967 Outer Space Treaty that the moon and other celestial bodies cannot be expropriated exclusively by any one nation. However, space and its resources should, in accordance with free market forces, be open to all nations who wish to develop those resources. Developed countries, such as the U.S., therefore, have pushed for an interpretation of both the Outer Space and Moon Treaties that would allow a proposed international authority to grant, on a non-discriminatory basis, "qualified" nations and private entities the right to "exploit" and maintain ownership control of those space resources they are capable of developing. These nations argue that any other interpretation of an international space agency’s regulatory authority would be a disincentive to space exploration and development, making the exploitation of space resources and subsequent technological innovations unprofitable for commercial investment. Their arguments on the legal status of space would resemble those of the "Positivist School" of space law, which advocates that the current laws of air or sea cannot be translated to an area of exploration that is still virtually unknown. Consequently, space law must evolve gradually as the facts and needs dictate. The legal status of space most congruent with their arguments would be that of res nullius, i.e., space that belonged to no one.

Addressing the issue of allocating space resources, Third World nations have presented to the U.N. General Assembly the "Common Heritage of Mankind" principle, affirming that the natural resources of space are held in common by all nations and should be distributed equitably for the benefit of all humankind, as also stated in the "Common Benefit" principle of the 1967 Outer Space Treaty. Following these principles, Third World nations question whether the allocation of benefits and wealth from a commonly held resource such as space should be determined solely on the basis of a nation’s technological capability to exploit that resource. They call not only for an international regulatory structure that would "rationally manage" and "equitably share" the benefits of space resources, but also for the international sharing of appropriate technologies related to their development. Their arguments resemble most closely the "Natural School" of space law, which argues that law is based on the fundamental principles of morality found in the human community and derived from understandings of the nature of humankind. It is, therefore, important to plan for the future uses of space and its resources in order to insure not only an equitable distribution but also to prevent conflicts among nations as have occurred during earlier eras of exploration. This group would argue for one of three possibilities for the legal status of space: (1) res communis omnium, that is, space as a common heritage for humankind to be regulated and garnered by all nations; (2) res extra commercium, that is, space as a common heritage governed by an international organization such as the United Nations; or (3) res communis humanitatis, that is, space as a common heritage that is not owned by any nation but from which all nations may garner benefits.

Why are the issues of the legal status of space, its resources, and space technology transfers so important? For developed countries such as the U.S., the need to maintain technological leadership is inseparable from national security, making the sharing of technology an untenable demand. They see the commercialization of space as (1) forming the creative frontier of technological research and development; (2) developing those "economies of scale" essential to a country’s economic growth on the global level; (3) enhancing industrial and educational capabilities, thus advancing a country’s standing on the "learning curve" internationally; (4) enabling nations to acquire "hard currency" on the global market; and (5) promoting national pride and international prestige.

Third World countries also see the economic importance of space industries. They therefore argue for the implementation of the common heritage principle and an international regulatory agency to (1) enable developing countries to reach economic and political parity with the developed countries, and (2) help establish a new, more stable, international economic order based on cooperation for the mutual benefit of all nations.

In the area of telecommunications, Third World nations see space technologies as enabling them to create clusters of smaller labor-intensive projects with satellite communications, enhancing the coordination of these projects and thereby improving their efficiency, particularly when these projects are located in isolated rural areas. Satellite telecommunications would also enable Third World nations to increase their domestic communications for the delivery of services such as health care and education to rural areas thus increasing skill formation within the country. In addition, satellite communications would help bridge the gap in service and trade between the domestic and international economy. Finally, Third World nations need stable industrial infrastructures and the capacity to generate hard currency to service their foreign debt, and, therefore, recognize the potential for large hard currency profits in satellite communications and space technology production.

A number of rights claims are in conflict with one another in this debate between First and Third World nations concerning the allocation of space resources. If we are going to find some resolution to the international conflicts surrounding commercial space activities and the equitable distribution of outer space resources, we must look more closely at the conflicting rights claims and ethical perspectives employed by First and Third World countries in the debate.

These conflicting claims have their origins in the differing cultural values of First and Third World nations and can be briefly described as follows: (1) Third World demands for equitable sharing and access to a common resource versus First World arguments for efficient usage that may restrict access to the most qualified developers—but which will eventually bring greater benefits to everyone; (2) First World support of private property rights versus Third World needs-based arguments for the equitable sharing of goods and services to meet the social needs of their populations; (3) Third World demands for sovereignty and privacy rights in relation to the access and transmission of important business information and resources data versus First World rights claims for freedom of information; and (4) First World concerns for national security in relation to space technology transfers and their misuse versus Third World desires for greater autonomy, both technically and economically, with the participation rights such autonomy engenders in the global community.

These cultural and moral differences between First and Third World nations revolve around (1) different priorities for various needs, such as the physical needs of Third World nations for basic teleservices for communication, education, and health purposes, versus the ever expanding instrumental needs of First World economies for faster, more efficient services; (2) different understandings of fairness and equity in the distribution of property and entitlement benefits, such as the desire of Third World nations to meet the basic minimal standards of living for their populations by gaining an equitable or equal access to a "commonly held resource," versus a First World understanding of legal acquisition and transfer as the fairest form of property and entitlement distribution; and (3) different understandings of appropriate market systems and of government regulation and involvement in those systems, such as in Third World nations where the government should be involved to "rationally manage and equitably distribute" those resources available in the economy, versus that of First World nations where free-market forces and government non-interference are considered to be the most efficient method for proper resource management and development.

What the above conflicting rights claims and controversies demonstrate is that the international legal system governing outer space, as it now stands, is not adequate for the new ethical and economic dilemmas that space commercialization presents. It is apparent that current regulatory agencies that use efficiency adjudicatory models based on utility can no longer make an accurate assessment of the conflicts occurring between First and Third World nations when the basis for these conflicts is to be found in the ethical and moral priorities of the various countries themselves. A model based solely on efficiency or utility, then, is no longer tenable given that it does not have the evaluative measures needed to appraise ethical conflicts generated by differing values and the needs those values prioritize within the various nations involved in the controversies concerning space commercialization. Consequently, there is a great need for innovative, consensus-based approaches to the development of outer space law and policy that combine ethical values and new understandings of both global interdependence and the common good, with the efficiency models already in use.

Finally, we believe that an international regulatory institution should be established and empower authority in it to implement programs that would (1) develop a code of ethics for the transfer of technology and intellectual property to Third World nations; (2) encourage partnerships between Third World nations and multinational corporations on program development around independent satellite use and remote sensing; (3) promote incentives for multinational corporations to develop appropriate technologies (perhaps using the money collected from the rent/tax on space activities); and (4) provide funding for space development projects that guaranteed improvement in the living standards and basic capabilities of people in underdeveloped nations. Such programs would ensure the stable and equitable development of the global economy into outer space.

Thus, the results of these current legal and ethical debates will be crucial to the future definitions of outer space law and policy and will have a direct effect on the conduct of nations and private corporations in the use and allocation of resources beyond the confines of this planet. Without changes in current legal and policy structures the possibility of growing instability between nations could inhibit the future peaceful development of space and space resources by both government and private enterprise.

INDIAN PERSPECTIVE

India has played a significant role in the development of global space law and policy.  It is a party to all important space treaties, which form the main body of international space law.  On the domestic front India has not only achieved its objective of using space technology for the benefit of common man, but is also using these for commercial purposes.   Besides national accomplishments, India was recognized in the international arena as one of the major space faring nations, which in turn opened up global opportunities and demand for Indian services.  India has recently concluded many bilateral agreements at global level.

Though proliferation of space activities are going in a big way there is no specific space legislation in India.  Space and space -related matters in India are regulated by legal rules belonging to different areas of the domestic law.  However, time has come now for the preparation of appropriate legal framework, keeping in view of the recent national and global developments which include the active involvement of the private sector and commercialization of space activities, the agreements concluded nationally and globally with various agencies, governments and international and intergovernmental organizations.  Other pressing issues for domestic space legislation include the cable and satellite and other related developments- all remind us of the need for comprehensive space legislation in India.

The increasing commercialization of space activities has thus, led to a widening gap between the slowly evolving legal framework and the rapidly evolving legal problems arising from private enterprise and commercial exploitation. To date, only one national jurisdiction, the US, has attempted to accompany this evolution by modifying its legislation.  It is important for a developing country like India, to have a provision in its Patent Act, because after huge amounts are invested in inventing a particular object, and if later some other country takes a patent over it, then our country cannot face such consequences. If an outsider comes and takes a patent, then all the investment we had put and the amount of work would go waste.  This would be possible only when we do not have the weapon in our hands.  Therefore, it is time to wake up and realize the dire consequences that our country would be facing, if there were no proper patenting laws relating to outer space activities. 
The idea seems to be dawning on other jurisdictions also. But we see that there is still tremendous inertia on the part of legislators, who are for the most part unaware of the problems, which arise between IPR law and space activities.  At this point, it is important to emphasize the words of Doyle, who observed, “[W]aiting for clarification of international legal rules relating to use of resources beyond the earth may be self-defeating. The prevailing legal regime is permissive and clearly influencable by future action.  The longer one waits, the more likely it is that constraints will emerge. The sooner action is taken to demonstrate what can be used and how it can be used, the sooner the sooner the international community is likely to move forward to establish appropriate rules to regulate the use and exploitation of extraterrestrial resources.”

Thus, India being a developing country should be cautious in its approach. It is more desirable to have a specific provision like the US, in order to prevent unforeseen consequences.   

CONCLUSION

As we analyze the situation described in the preceding pages, the real question is not whether there will be property rights in space, but when and what kind of property rights will exist.  It would be wise to identify and address the issue concerning property rights in space and the guidelines and constraints to which entities may be subjected in a timely fashion before problems arise. The goals of a legal regime for outer space should be to continue to preserve outer space for peaceful purposes and for the benefit of all human kind while at the same time not discouraging private enterprise.

If the outer space is to survive, which promises to be really the golden age of commercial space endeavors, then a few essential accessories need to be added by OST defenders (LDC’s).  We need binding legal interpretation of the obligations of the OST for the signatories, and clear mechanisms for applying this to the activities of nationals of the signatory states.  In addition, we need to create an efficient enforcement means, which protects the legitimate interests of inventors and patent proprietors, to the extent that they are not in conflict with the basic principles of the OST and the founding principles of IPR, i.e., promotion of the progress of science and the useful arts, the sharing of space benefits, and the non-appropriation of outer space.

Lastly, history demonstrates that in time of exploration, unclear property rights systems breed uncertainty, hostility and even war.  The time is now ripe to promote the development of a space property rights system that will promote development, free enterprise and the rule of law. Such an effort would lay the foundation for peace and prosperity in the new millennium, on the earth and beyond.
 
 
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