Let us have a look for this new space law article at intellectual property aboard the International Space Station (ISS). We cannot ignore today the more than preponderant place of new technologies in our society. Even more, we speak of digital life and especially with regard to space and satellite technologies, ultimately essential to our era. These technologies have over the years enabled new scientific discoveries, new commercial products and services, new inventions.
So, who says inventions, necessarily says intellectual property right. Indeed, space technology is ultimately nothing other than intellectual creations, thus raising the question of property and this, even more since the proliferation of private and commercial space activities in a legal framework both national and international.
According to a definition from the French National Institute of Industrial Property (INPI), the patent protects a technical innovation, that is to say a product or a process which provides a technical solution to a given technical problem. The invention for which a patent can be obtained in France from the INPI must also be new, involve an inventive step and be capable of industrial application. Many innovations may be the subject of a patent, provided that they meet the criteria for patentability and are not expressly excluded from protection by law. Some inventions are not patentable but may be subject to other types of protection, such as the deposit of designs and copyright.
The protection of inventions is subject to the applicable territorial legal framework. We therefore wondered whether, ultimately, this territorial competence did not authorize an extension of national law to the objects that each country launched into space. Indeed, if rules exist for most of the States in this area, what about when one leaves the principle of territoriality to join outer space?
The question is all the more complex considering the fact that Article I and Article II of the Outer Space Treaty establish the fundamental principle of the non-appropriation of outer space and celestial bodies. The problem is therefore all the more complex for a work or invention created in space which, in accordance with this principle, cannot belong to one and the same person.
Two principles are therefore ultimately in conflict: the protection and respect of intellectual property rights in the face of the principle of non-appropriation, the freedom to explore and use outer space. Undeniably, it became necessary to lay down a few rules. Although space is reputed to be “non-appropriable”, the principle of territoriality can play on certain space objects, and in particular aboard the famous international Space Station (ISS).
The ISS is a space station placed in low Earth orbit (LEO). It is permanently manned by an international crew dedicated to scientific research in the space environment. This program was launched by NASA and the Russian Federal Space Agency with the participation of European, Japanese and Canadian space agencies. This space station is composed on the one hand of the pressurized modules in which astronauts live (laboratories, docking modules, interconnection modules, airlocks, multipurpose modules), and on the other hand of non-pressurized elements which perform different functions such as energy supply, thermal regulation, maintenance (robotic arms) and storage of scientific experiments and spare parts.
Article VII of the Outer Space Treaty recalls that the object launched into outer space will keep under its jurisdiction and control said object and all personnel of said object. In addition, it provides that the property rights to objects launched into outer space, including objects brought into or constructed on a celestial body, as well as their constituent elements, remain intact. However, at that time there was still no real distinction between tangible property and intellectual property. It was not until the agreement on cooperation relating to the international civil space station made in Washington on January 29, 1998 between Canada, the United States of America, Japan, Russia and eleven Member States of the European Space Agency.
In its article 21, the agreement thus decided on the question of the intellectual property right vis-a-vis the right of space and the principle of non-appropriation: provisions of this article, an activity taking place in or on a flight element of the International Space Station (ISS) is deemed to have taken place only in the territory of the Partner State having registered that element, except that, for elements registered by the European Space Agency, each European Partner State can consider that the activity took place within the limits of its territory.
It is therefore understandable that everything is played on the question of registration. Indeed, the Convention on the registration of objects launched into outer space, concluded on January 14, 1975 and entered into force on September 15, 1976 enacts the obligation for the State to launch a space object and register this object and communicate the information relating to its identification to the Secretary General of the United Nations. In other words, the work that will be created by space objects is necessarily protected by national law.
Finally, with regard to inventions, the rules already seem a little clearer and above all provided for in the texts, something which has not yet been completely done with regard to literary and artistic property. Indeed, Article L611-1 of the French Intellectual Property Code clearly sets out the principle of the invention made or used in outer space, including those on celestial bodies or in space objects.
As a rule, the industrial and academic users who will have access to the Space Station through the European Space Agency will have their rights and obligations determined by the contractual framework they will have agreed on with the Agency.
While it is true that space technology has long been one of the most advanced technical fields and that space activities are, in fact, intellectual creations, it is only in recent years that these activities have raised questions of intellectual property. Among other reasons, space activities, public as they were, are becoming more and more private and commercial. In addition, an increasing number of these activities take place within the framework of international cooperation mechanisms, which depend on a simple, uniform and secure international legal framework.
While patent protection is subject to the applicable territorial legal framework, in accordance with international space law, the State where the space object is registered retains jurisdiction and control over it. The question arises as to whether territorial jurisdiction under intellectual property law authorizes the extension of national (or regional) law to the objects that each respective country has registered and launched into space. In the absence of explicit international rules and under various international agreements concluded in the field of international space projects, recorded space objects are treated on a quasi-territorial basis for the purposes of intellectual property.
The technical and financial contribution of the private sector is expected to intensify in the future development of space activities. There are a number of instruments of general interest that can be envisaged to attract the participation of the private sector, but the protection of intellectual property will play an important role in developing convincing business models of space objects that combine the public and private sectors.
This article was written by Pauline LETOURNEUR (Paris-Saclay).