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IP Rights - when the World is not enough

It is not unusual for some forms of Intellectual Property or IP agreement to provide that rights are granted for use ‘in the known Universe’.

I’m waiting for the day when I can describe the territory in an agreement as ‘to infinity and beyond’ but will keep that up my sleeve until I have a client named 'Buzz‘ or ‘Lightyear’ or both.

The reason why (in the words of James Bond) sometimes ‘the World is not enough’ was highlighted this week when US Astronaut Lieutenant Colonel Anne McClain was accused of infringing the rights of her estranged partner from outer space. Specifically, Lieutenant Colonel McClain was alleged to have committed identity theft and of accessing the bank account details of her former partner via the internet from the International Space Station. The allegations have been strenuously denied.

One of the first queries raised is who has jurisdiction to deal with the alleged infringement, as the conduct is said to have occurred in space.

Taking that a step further (one small step?), what commercial and/or Intellectual Property rights can be generated, commercialized or dealt with in space?

Ownership Rights in real property extend across the land, as well as the air above and the earth below. There are also aeronautic rights, which are utilised by Governments, within the Earth’s atmosphere. But from an altitude of approximately 100km (beyond the upper layers of the atmosphere) space is regarded as a sovereignty-free zone. Much like the majority of the high seas and Antarctica, that territory is unable to be claimed by any nation as their own and there are no universal laws which apply.

In many cases, it doesn’t matter where an invention is developed. Rights come into existence on creation (such as with original copyright works) or on registration (for patents, designs and trade marks). Most rights have to be registered on a country by country basis, so that if the invention is developed in Australia (or outer space) for it to be protected in the USA a patent application will need to be filed in the USA, as well as any other countries where protection is sought. Filing in Australia won’t secure rights in other countries and won’t enable you to stop infringers offshore.

Different rules apply for copyright which is automatically acquired in many countries when an original work is created regardless of where the author was located. For example, as soon as I wrote this original text/article, I acquired the copyright in it in Australia and in many other countries. However, there are some countries where copyright can and should be registered so it is dangerous to assume that there is a one-size fits all solution.

Problems can also arise where an invention (or registered right) is infringed in outer space, as the right may only be capable of protection in the territory/country of registration. That has led to the amendment of patent laws in the USA (and other countries) to make inventions which are created in space (such as rockets which they launch) fall within their control and under their jurisdiction.

The space industry is now estimated to be worth $400 billion per year and there are notable Australian companies such as Gilmour Space Technology, Sabar Astronautics, Neumann Space and Myriota operating in that area. Virgin Galactic and Tesla are set to further commercialise space projects or travel and the Federal Government has implemented funding of $26 million from 2019-2022 (with a further $15 million in 2019-2020) to invest in international space projects beneficial to Australia.

The European Space Agency has stated that they currently file about 20 patent applications per year relating to inventions, made by staff members, with an expectation that number will grow.

So while it may seem to apply to only a few at this stage, the prospect is that many more companies may need to consider how IP might be used for commercial gain for space-related technologies in the future and what strategies are required to best secure those rights.

Licences which are granted (even for products created on Earth) can extend the territory to space if that is necessary. So in the rare event that the rights are to be applied in space, those agreements which have granted rights ‘in the known Universe’ may have some application after all.

Perhaps it will just add a further dimension to the commercialisation of IP, where it is always advisable to get advice early so that rights are best secured in line with a strategy for commercialisation. The starting points are generally to consider:

  • Ownership/protection of rights;
  • who needs to use the IP;
  • where or what is the market or jurisdiction where the IP is to be used;
  • whether there are limitations on use; and
  • whether ‘control points’ are in place.

Maybe Richard Nixon was right in 1969, when he said ‘The sky is no longer the limit’.

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."