The Commercialisation Of Space And Intellectual Property Law

Although it seems like an out of this world concern, there is now actually a substantial history of the commercialisation of space and the ability of private space companies and governments to protect their multi-billion dollar investments in technology for the colonisation and exploration of space is becoming an increasingly important issue.

From October 4, 1957 when Sputnik was launched to the present day there have been over a thousand military, commercial and research purpose satellites launched in various orbits around the earth. They have been launched by the United States, Russia, China and components of these technologies have been manufactured in Canada, Great Britain, France, Germany, Japan and many other countries around the world. These satellites provide rapid high bandwidth communications to the international community, the global positioning system, the international space station, numerous research facilities such as the Hubble space telescope and a range of other services which are only in their infancy. The satellites and space stations are becoming increasingly complex and increasingly, the contributors of their components are private contractors.

It is only in recent times that the development of large private companies based solely around the industries of space based telecommunications, space research and space tourism has begun. The founding of SpaceX which has now grown to a staff of over 3,000 and companies like Virgin Galactic which is set to begin flights into space with its space tourism vehicle by the end of 2013. During the early days of space flight, most of the manufacturing of the components of space vehicles was performed inhouse by NASA or by defence contractors like Boeing or Lockheed Martin. However, there are now literally hundreds of companies around the world which participate in the space program engineering program and build, design and test components of space craft.

Development Of Intellectual Property Law Framework For International Space Station

The International Space Station will soon reach completion. It has cost an estimated $105bn and is therefore the most expensive single object ever constructed by mankind. It also contains thousands of unique inventions which facilitate functions of the station like the maintenance of its orbit, life support and energy supply systems and its launch and recovery systems. Also, there is a long schedule of research for the space station which is expected to yield many important discoveries which could assist in the creation of inventions that potentially patentable. When the station was first conceived, the governments participating being the United States, Russia, Japan, Canada and the members of the European Space Agency, there was the Intergovernmental Agreement established between them to regulate the responsibilities of each of the states in relation to the project.

At the moment is not clear what law would apply if an invention were actually created during the time on the space station. This is because it is normally the case that a patent is only protected within the national jurisdiction of the country where it was invented. International protection can be obtained from registration of the invention under the terms of the Patent Cooperation Treaty administered by the World Intellectual Property Organisation. However, the national borders of all of the nations of the earth generally only reach to 100km above the earth and not out into space indefinitely. One technical view of a potential dispute about this is that if a country sends an object into space under Article 8 of the Outer Space Treaty of 1967, that nation retains jurisdiction over that object. The United States Patent Act was amended in 1990 to reflect this making objects launched by the United States and used in Outer Space protected by the patent legislation. However, the USA is the only country which is participating in the construction of the international space station that has done this.

The result of this is somewhat complicated in the case of the international space station because the intergovernmental agreement allows for the jurisdiction of the courts to apply in relation on the basis of where each module of the space station was constructed. This means that there are potentially 7 different countries legal systems which could have jurisdiction depending on which part of the space station an astronaut was in when they discovered the invention that is being patented. The intellectual property developed in the space station could easily become the subject of an international dispute.

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