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The Commercial Exploitation of Outer Space: Issues of Intellectual Property Rights and Liability

Published online by Cambridge University Press:  21 July 2009

Hanneke van Traa-Engelman
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Extract

Rights and obligations connected with intellectual property and liability will influence the commercial exploitation of outer space by private entities. Whilst international space law facilitates private enterprise participation in space endeavour, additional action has been taken, on national as well as multi-national level, to provide the business community with the necessary incentives to play their role in the commercialization of space activities. The situation and legal developments described in this article mark the very beginning of a movement towards the consolidation and diversification of commercial space exploitation.

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 4 , Issue 2 , September 1991 , pp. 293 - 304
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1991

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References

1. Held in Paris, December 6–7,1990. A report on the Conference by T. Masson-Zwaan is to be expected at the end of 1991. It will be published by the International Bar Association (IBA). Proceedings of the Conference will be published by Nijhoff Publishers.

2. See, e.g., Boeckstiegel, K.-H., Benkoe, M., Space Law - Basic Legal Documents (1990)Google Scholar

3. See, e.g., Lachs, M., The Law of Outer Space - An Experience in Contemporary Law–Making (1972);Google ScholarGorbiel, A., International Organizations and Outer Space Activities (1984).Google Scholar

4. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and other Celestial Bodies, Jan. 27,1967,18 UST 2410, TIAS 6347,610 UNTS 205; entered into force Oct. 10,1967 (herein after Outer Space Treaty).

5. See, van Traa-Engelman, H.L., Commercial Utilization of Outer Space - Legal Aspects, chs. II, IX (1989).Google Scholar

6. See infra 2.3. Qualification for launching state.

7. Convention on International Liability for Damage caused by Space Objects, March 29,1972,24 UST 2389, TIAS 7762; entered into force Oct. 9, 1972 (herein after Liability Convention).

8. 49 US, Paras. 2601–2623.

9. Executive Order No. 12,465,49 Fed. Reg. 7, 211 (1984).

10. See, Yelton, K.G., 1 The Journal of Law & Technology 117–137 (1989).Google Scholar

11. 49 USCA App. Paras. 2601 –2623 (West Supp. 1989), Pub. L. No. 100–657,102 Stat, 3900 (1988). See also, supra note 10.

12. Arianespace, an industrial and commercial entity was incorporated in France on March 26, 1980. Participants are 36 leading European companies operating in the aerospace and electronics fields, together with thirteen European banks and the French Center Nationale d' Etudes Spatiales (CNES), the French space agency. See, e.g., Finch, E.R., A.L. More, Astrobusiness, A Guide to the Commerce and Law of Outer Space 23–30 (1984).Google Scholar

13. This Declaration entered into force on April 14,1980.

14. See supra note 6.

15. Id.; See supra note 7.

16. See, Bourely, M., Space Commercialization and the Law, Space Policy 131–142(1985). According to Bourely: “we may thus consider that the Arianespace Declaration corresponds well to the obligations imposed on states signatory to Article VI of the Outer Space Treaty and to the Liability Convention. Nevertheless, this Declaration is only binding on these states in their relation with Arianespace. It would not be applicable if, in one or another of these states, another private launching company had just been formed” (id., at 139).Google Scholar

17. Act on Space Activities (1982: 963); A Decree on Space Activities (1982: 1069) provides for a National Board for Space Activities in connection with licence applications.

18. Act on Space Activities (1982), s. 1, second sentence. 19.W., s.5.

20. Id., s. 6.

21. Outer Space Act 1986, ch. 38.

22. Id., Para. 1.

23. Convention on Registration of Objects Launched into Outer Space, Jan. 14,1975,28 VST 695, TIAS 8480,1023 UNTS 15; entered into force Sept. 15,1976 (herein after Registration Convention).

24. Id., Art. 11(2)

25. Art. VII Registration Convention; Art. XXII Liability Convention.

26. H.R. 2946.

27. 35 US 101(1982)

28. See, Meredith, P., Stauts of the ‘Patents in Space’ Legislation in Congress - October 1989,17 Journal of Space Law 163–167 (1989).Google Scholar

29. Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain and the United Kingdom contribute to the Colombus Programme.

30. International Government Agreement on the Space Station (IGA), signed at Sept. 29, 1988 in Washington. Excerpts to be found in 16 Journal of Space Law 220–226 (1988). See, e.g., Reifarth, J., Rechtliche Aspecte des Uebereinkommens ueber die Internationale Raumstation, ZLW 36–52 (1989);Google ScholarZwaan, T.L., de Vries, W.W.C., Liability Aspects of the International Space Station Agreement of 29 September 1988, Proceedings of the 32d Colloquium on the Law of Outer Space, IISL, Torremolinos -Malaga 445–450 (1989).Google Scholar

31. See, supra note 29.

32. Moreover, an Interim Arrangement was concluded between the US, Canada and the relating ESA Member States, See Schwetje, K., The Legal Regime of the US Space Station, Proceedings of the 31st Colloquium on the Law of Outer Space, IISL, Bangalore, 1988.Google Scholar

33. Art. 1(1) of the IGA, supra note 30.

34. The US will provide flight elements consisting of the infrastructure, including a habitation module, a laboratory module, attached payload accommodation equipment, and a polar platform. ESA will provide an attached Pressurized Module, a man-tended freeflyer, and a polar platform. Japan is committed to provide the Japanese Experiment Module (JEM) as well as the Experiment Logistics Modules and Exposed Facility. Canada will add to the infrastructure elements a Mobile Servicing Center, a related Maintenance Depot, and the Special Purpose Dexterous Manipulator. See Schwetje, K., supra note 32.Google Scholar

35. See, Art. 16(2.f) 1GA, supra note 30.

36. Id., Art. 16(3.d.3) IGA.

37. Id., Art. 16(3.b) IGA.

38. See supra note 7.

39. Art. 16(d) IGA, supra note 30.

40. Stockholm, July 14, 1967.

41. Art. 5 IGA, supra note 30.

42. In the US an invention is not made until it has been conceived and diligently reduced to practice in the US either by building the model or practicing the method or filing a patent application in the US which describes the invention and the manner of making and using it. See U.S. Patent Act, 35 USC 102(g).

43. In force since 1977, fourteen member states.

44. Art. 52 signifies patentable as being susceptible to industrial application, new and innovative. Art. 60 contains the first to file rule. Moreover, it brakes with the nationality rule when the inventor is an employee by applying the law of the state where he is employed or the state where his employer has his place of business.