IP IN SPACE
“IN THEORY AT LEAST, THE STATE OF REGISTRY COULD BE PURPOSELY CHOSEN SO AS TO AVOID ANY JURISDICTION IN WHICH IP RIGHTS ARE HELD.”
state will register a new quasi-jurisdictional enclave in space. In theory at least, the state of registry could be purposely chosen so as to avoid any jurisdiction in which IP rights are held. Tis might seem like an extravagance but paper registration in a state with minimal regulatory oversight of space objects held on its registry could have distinct benefits for a commercial entity which procured the space object’s launch.
Te spectre of ‘flags of convenience’ (a legal
phenomenon usually associated with maritime law) hangs over the future of commercial space activity.
of a space object or a state from whose facility (as opposed to territory) a space object is launched. Tough infrequent in practice, there could be as many as four separate states each regarded as ‘launching states’ for the purposes of a single launch into orbit. When this happens, those states must jointly determine which one of them will be nominated as the sole state of registry.
As there is no obligation to register prior to launch (indeed registration oſten occurs some time aſter the event) it could be a matter of guesswork which
Te landscape for IP in space is even more complicated when it comes to modular space objects which are the result of international collaboration such as the ISS. Each module of the ISS is carried on the registry of the state which contributed it. As ISS personnel cross between the modules, so they cross from one legal jurisdiction to the next.
Prior to the opening up of outer space to the private sector it might have been sufficient to target certain key space-faring states when it came to devising an IP strategy for innovations with space applications. To this end, ESA and NASA typically filed their patent
applications with the European Patent Office and US Patent and
Trademark Office. Tis would have accounted for a decent number of the quasi-jurisdictional enclaves in existence at the relevant time.
Te birth of private industry-led space exploitation has brought about a significant change. Commercial entities operating out of a far greater number of the 102 state parties and 27 signatories to the Outer Space Treaty 1967 are seeking to engage in commercial space activities. Even if one views the prospect of space objects using flags of convenience with a certain amount of
scepticism, there is
undoubtedly a greater variety of states called upon to act as states of registry with a correspondingly broader range of quasi-jurisdictional enclaves being created in space.
Among the 25 states to register space objects so far this year are North Korea, South Korea, Mexico, India, Brazil, Tailand and Azerbaijan. For private sector innovators in the space industry it is becoming hopelessly expensive and unpredictable to obtain meaningful protection for intellectual creations intended for use in outer space. Tis may ultimately damage the confidence of financial backers and reduce the flow of capital to ambitious companies like Reaction Engines seeking to develop cutting-edge technologies.
www.worldipreview.com
World Intellectual Property Review September/October 2013
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