Leigh-Ann Tonon is a JD candidate at Osgoode Hall Law School and is taking the Patent Law course.

In this blog, I wish to explore the relevance of intellectual property rights to outer space activities.

Despite the inventiveness and innovation needed and used for space technology, it is only in recent years that intellectual property protection in connection with outer space activities has raised attention, the main reason being that space activities are increasingly shifting from state-owned activities to private and commercial activities.  These non governmental entities are more conscious of their “property” both in tangible and intangible forms, and because of the large cost they are now expecting that their research and development investment will be recovered in the future.

The space industry is large, and requires vast amounts of financial and technological innovation to continue, therefore private funding will continue to be more and more necessary.  Thus, a benefit of increasing intellectual property rights would be an increase on the participation of the private sector in the development of outer space activities and on further development of space technology in general.

Another relevant factor in the increased push for international intellectual property rights is the globalization of space activities.  More and more space activities are operated under international cooperation schemes, and different national laws still apply different principles.  It would be simpler if there was a uniform and reliable international legal framework.  If the current lack of legal certainly persists it will influence the advancement of space research and international cooperation.  Because of the large investments involved in space activities, a legal framework that assures a fair and competitive environment is necessary to encourage the private sector’s participation in the field.

But what are some of the challenges in creating these intellectual property rights for outer space activities?  The largest is the applicability of national intellectual property law in outer space.  While patent protection is subject to the applicable territorial legal framework, according to international space law, the State on whose registry the space objects is carried retains jurisdiction and control over that space object.

From the business perspective, it seems likely that legal certainty is essential for the space industry to grow and thrive, as businesses seek to insure that their technology and financial investments will pay off.  Therefore, although harmonization of national intellectual property law and practice would eliminate some of the difficulties faced by space agencies and space industries, identifying and exercising intellectual property rights in connection with extraterritorial activities remains unresolved.  Research and discussion needs to continue regarding the long term prospects of space activities and the development of a less ambiguous and better coordinated international intellectual property framework.

On the other hand, the exploration and use of outer space for the benefit of humankind and the non-appropriation of outer space are fundamental principles under international space law.  Therefore, while recognizing the importance of IP for the exploration of outer space and the further development of science and technology, questions have to be raised as to whether the protection and enforcement of intellectual property rights may conflict with the principles outlined above, in terms of access to knowledge and information derived from space activities.