How does the protection of intellectual property (IP) rights extend to outer space? For both existing space businesses and the many new space-technology start-ups, the protection and enforcement of their IP will become increasingly critical as competition in this area ramps up. But the fact that satellites end up located hundreds of kilometres above the earth creates a special set of complexities for any IP strategy.
The context
With satellite services like GPS, satellite TV, weather monitoring, and Google Maps imaging all commonplace, it’s easy to think that all the possible satellite services are already on offer. But the truth is that the historically huge cost of launching a satellite – often into the hundreds of millions of dollars – has limited the commercial viability of many possible satellite-based services.
However, the recent growth in the commercial space launch market, which includes New Zealand’s own Rocket Lab, are opening significantly lower-cost routes to space. And this lower cost of access is, in turn, reinvigorating the satellite industry. Many new services have recently been announced, including constellations of hundreds or even thousands of small satellites to provide high-speed internet anywhere on earth, and numerous earth observation services aimed at providing a data-driven approach to everything from the health of a farmer’s crops to validating insurance claims.
Even with declining launch costs, satellite development and manufacturing remains a classic example of an industry with long development cycles, and massive research and development investments. For businesses with these characteristics, IP protection is commonly an essential tool for safeguarding and recouping on their investments.
But in order for IP protection to be useful, favourable enforcement laws need to exist. For a satellite on the ground pre-launch, the laws of the manufacturing or launching country cover enforcement. But once a satellite is in space, whose law – if any – applies?
So what law applies in outer space?
The laws of an individual country generally only have effect within its physical territories, and international law prevents countries from claiming any part of outer space as part of their territory.
Instead of assigning physical space to countries, an international convention requires that objects launched into outer space are instead registered to a particular country. Once registered, the laws of the registering country – which is either where the actual launch is from, or where the launch is purchased from – are deemed to extend to the registered object. This can give an avenue for enforcement of IP rights against objects in space.
For example, if a satellite is launched from New Zealand, or if a New Zealand company purchases a launch, the satellite can be registered to New Zealand, and New Zealand laws will apply to the satellite.
What’s the catch?
Although registration allows a country’s laws to extend to the registered satellite, many laws – such as New Zealand’s Patents Act – don’t expressly include that they will apply to registered objects in outer space. This leaves uncertainty as to whether space objects registered to a country actually have the protection of that country’s laws.
So far, only the United States has updated its IP laws to include that they apply to US-registered space objects. Other countries, particularly new launching countries like New Zealand, should follow suit. Until they do, there may be gaps in the ability of IP rights holders to enforce their rights against satellites in space.
What’s the take-away?
IP strategy should be a huge part the business plan for all new space technology start-ups. IP protection presents significant opportunities for maintaining the exclusivity of space technologies, providing a means for recouping on research and development costs, or for generating new revenue streams. Steering clear of infringement risks will also be important to start-ups for ensuring long-term business viability.
Because of the complexity of this area of law and the fact that an IP strategy can influence fundamental decisions like location of manufacture or choice of launch provider, we recommend getting professional advice as early as possible.
Outside of start-ups, existing satellite technology businesses both in New Zealand and internationally should be considering expanding their patent filing programmes to include new launching states, such as New Zealand. Otherwise, their rights could end up unenforceable against infringing products manufactured or present for launch in New Zealand, and against launched objects registered to New Zealand. While current legislative gaps leave some uncertainty as to enforcement in space, it seems likely that future amendments will address these issues.
If you’d like to know more about protecting your inventions and enforcing your rights for a space-related venture, please contact us.
This article is the first in a new series: 'Intellectual property in outer space'. Later topics will address specific considerations such as the patentability of inventions created in space, copyright created in space, and freedom to operate considerations for space activities.
