On 30 October 2000, the first crew launched to the International Space Station (ISS). Anybody born after this date has never lived a single day without a human presence in space.
With the ISS due to be deorbited in 2030, the baton will be passed to Tiangong (China’s space station) and to private initiatives – notably Axiom Station, Vast’s Haven-1 and Blue Origin’s Orbital Reef.
The days of space being the exclusive domain of governments are long gone. The plunging cost of launching payloads to low-Earth orbit (LEO) has fuelled the commercialisation of space and the boom in In-Space Servicing, Assembly, and Manufacturing (ISAM) means that commercial activity has already expanded beyond Earth.
This new LEO economy is only set to grow. Initially it will focus on services such as satellite refuelling and micro-gravity manufacturing. However, with the first private space station due to launch in 2026, even traditional FMCG companies now need to consider the IP implications of the LEO market.
It is quite possible to envisage a scenario occurring before the end of this decade where a space tourist is enjoying a stay on a private space station and listening to music protected by copyright being played through a patent-protected device whilst eating branded food items from packaging covered by a registered design.
Although IP in space has been much debated over the years, there remain far more questions than answers when considering the IP issues raised in this hypothetical scenario.
The principal international treaties which govern IP law (i.e. the Paris Convention, the Berne Convention and TRIPS) do not expressly consider the question of IP rights in space.
The principal international treaties which govern space law (i.e. the Outer Space Treaty, the Rescue Agreement, the Liability Conventions, the Registration Convention and the Moon Agreement) do not mention IP at all.
Article 21 of the International Space Station Intergovernmental Agreement does mention IP and states that jurisdiction for infringements is determined by which partner nation owns the particular module of the ISS in which the infringement took place. This, of course, only applies to the ISS and is not a general rule for how jurisdiction of IP infringements will be determined.
The more recent Artemis Accords at section 2(1)(b) does reference IP in more general terms, but it only goes so far as to say that agreements between the signatory nations are expected to contain provisions which maintain IP protections.
As the space economy continues to grow and evolve, providing certainty in this legal no man’s land is becoming increasingly important with every launch.
As of today, the position is that our territorial and terrestrial IP systems struggle with the concept of protecting trade mark rights in LEO (and beyond) and urgently need to be updated. However, Article VIII of the Outer Space Treaty does establish the principle that the State which owns and procured the launch of a space object has jurisdiction and control over that space object. It is certainly arguable that this jurisdiction and applicable law would extend to any IP infringement in space.
Until such time as a bespoke law is agreed, businesses will need to work within the current legal framework. A solid starting point for an IP strategy would be to:
- Secure protection in jurisdictions:
- where your competitors operate; and
- from which infringing goods are likely to be launched (i.e. exported) to LEO; and
- where ground stations and/or end users are positioned; and
- which are listed as the State of registry for relevant space objects on the UNOOSA register; and
- Ensure that any contracts relating to collaboration projects have clear:
- choice of law and jurisdiction clauses; and
- dispute resolution mechanisms, potentially including arbitration and mediation.
Whether you’re operating satellites or simply exploring LEO as a new commercial channel, understanding how space impacts your IP strategy is no longer purely theoretical. It is increasingly urgent and actionable.
Ultimately, the international community will need to agree a long-term solution with robust protection and enforcement mechanisms. We can all look forward to the day when it will be possible to designate LEO as a separate jurisdiction within a Madrid Protocol filing.
If you would like to discuss this matter in more detail, please do not hesitate to get in touch with your usual contacts at CSY or via mail@csy-ip.com.