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Chukeat Noichim**
1. Introduction
At the beginning of Space Age, space activities were predominantly public activities or governmental space programs mainly devoted to exploratory and experimental as well as military space operations, but they were not commercial. However, in the last decade until now, the character of space activities have fundamentally changed from public purposes to world commercial ones. The global policy for the free goods and service trade as well as fair competition have expanded and thus, create new patterns of relative investment (especially) in space activities. They range from government-government, government-private sector, to business enterprises themselves. This lies in the areas of exploration, usage and commercial exploitation of outer space.
Space activities are, like all human beings' activities, subject to international and national laws and regulations. The space activities for profitable commercial ventures bring about the motives for international cooperation and competition which create new legal problems, emerging from other activities e.g. space communications, space industries, and launching of the services, etc. Nevertheless, for space activities themselves, a number of regulations can be mentioned which are applicable to space activities but depending on the nature of such activity. For instance, satellite telecommunications activities are subject to public international law, international space law, international telecommunications law , as well as their own national law.
Intellectual property rights (IPRs) currently raise a number of impotent/ important? legal questions in regards to space activities e.g. ownership of intellectual property and infringement of IPRs, etc. Since private enterprise has become a recognized factor in further space development, and space applications are becoming more and more integrated in everyday life on earth, intellectual property rights (especially industrial property) relating to space activities are gaining substantial importance. Industrial property (patent system) plays an essential role for the grant of a patent, generally to encourage the inventive activities for the benefit of the general public. Since patent systems have been developed as a balance between the interests of an inventor and those of the general public.
This research, aiming at demonstrating the applicable legal regime for intellectual property rights in outer space, will concentrate on the patent law system of the EU and Thailand. When plans have especially been made to the international space station, discussions on patents and activities in outer space are changed from theoretical aspect to practical use. It is assumed that patent-related issues would arise only in regards to the creation of an invention. This is specially so after permanent laboratories in earth orbit and/or in the base station on the Moon or on the Mars are established. Due to the fact that special space environment is expected to generate new material and technologies. Moreover, new technologies need to be developed in order to carry out activities in this very harsh environment (eg. difference in temperatures etc.).
2. Legal Regulations of Activities in an Outer Space
On 4 October 1957, the Space Age actually began when the world's first artificial satellite, SPUTNIK-1 (`travelling companion') was launched by the Union of Soviet Socialist Republics (USSR). Subsequently, other suggestions have also been made in relevance to the matter, which, if not juridical, undoubtedly possess the merits of expediency (what does this mean?)
1) quite a number of interests of the States in an exploration and use of outer space, for instance, considerations on policy and strategy in regards to science and economics. This is so in order to avoid confusion and conflicts as well as to enable some orderly procedures on special required rules;
2) space law in consistence with an ongoing revolution in space technology, forming a logical sequel (what does this mean?) to it;
3) outlining the basic principles for further evolution in law with a tendency to allow the situation to get out of hand and then crystallize in various shape and forms, thus a detriment to a cohesion and an uniformity.
While the pros and cons surrounding the proper place for space law within the context of international law have been in a debate, a prompt search for analogies and models will be in the older structures within that sphere.1
Definition of an Outer Space
No formally accepted legal definition or delimitation of outer space exists at this moment. However, it is clear from the above mentioned that any definition should contain a reference to the role being played by the density of the atmosphere. A convenient/suitable/proper definition could therefore be as follows:
An outer space is all the space surrounding the Earth . It is where objects can move without artificial propulsion systems, according to the laws of celestial mechanics. It exists without being prevented from doing so by frictional resistance of the Earth's atmosphere. It extends from an altitude above the Earth of approximately 100 ? 10 km. upwards.
In an outer space , as defined above, satellites, both natural and artificial, can move around the Earth without any active propulsion system. It is certain that when the orbital trajectory reaches altitudes close to 100 km, the braking force will still be strong enough to bring down the trajectory to under 100 km. This will be so in a prompt manner, since the frictional resistance decreases gradually with increasing altitude. Even at some 1000 km, this friction is still present, albeit very weakly. It will also take an object at this altitude for at least some 1,000 years to descend down to the Earth's surface.2
Legal Status of an Outer Space
At the beginning of Space Age in 1957, discussions began in the State community, within the UN, precisely on the legal status of this new issue. Several legal concepts of traditional public international law could be applied to a newly 'discovered' area. At final, the approach, which was chosen by the State community, was quite different from but comparable with the regime established for the high sea, where no State sovereignty is accepted. An outer Space was declared as a res communis which is not subject to the sovereignty of any State, and where States are bound to refrain themselves from any acts that can adversely affect the use of an outer space by the other states.3
Space Law Conventions
The well known international space law consists of the five space treaties concluded in the framework of the United Nations (UN):
- Treaty on principles governing the activities of States in the Exploration and Use of an Outer Space, including the Moon and other Celestial Bodies of 27 January 1967 (Outer Space Treaty);
- Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into an Outer Space of 22 April 1968 (Rescue Agreement);
- Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 (Liability Convention);
- Convention on Registration of Objects Launched into Outer Space of 14 January 1975 (Registration Convention);
- Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 18 December 1979 (Moon Treaty).
All of these stem from the fact that research and development, as well as the launching of space objects and their operational cost, require resources on such a scale that the task could only be undertaken by states or government-supported organizations. This can well explain the emergence of legal norms agreed upon and sanctioned on an international level. The first tangible result of COPUOS involvement was that a fundamental agreement on an outer space was ready for signature in 1967 : it was the Outer Space Treaty and was based on UN Resolution No. 1348 of 13 December 1958, No. 1472 of 12 December 1959, No. 1721 of 20 December 1961, and the Test Ban Treaty of 1963. The Outer Space Treaty provides the basic principles for the exploration and use of an outer space. Consequently, it serves as a "Magna Charta" or "Constitution" for all activities in an outer space. A number of its principles were elaborated in more specific provisions of four other space treaties mentioned above.
Principles of International Space Law
The Outer Space Treaty was a landmark in an establishment and a progressive development on the rules of international space law. The principles of international space law constitute the most general rules of behavior for states in their space activities. This treaty has established the following principles of international space law:
- Right to use an outer space but not to appropriate it
In the Outer Space Treaty, we can find this principle. In Article I, it has been stated that "Outer Space ...shall be free for use and exploration by all states". In Article II, "Outer Space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". Since the freedom to explore and use an outer space is considered as a res communis. It rests on the assumption that all states must not place any obstacles or impediments upon the conduct of one's activities . In other words, every state must pay a respect to the rights and the interests of other states in an outer space.4
- Application of International Law
In the Outer Space Treaty, Article III provides that activities of all states parties in an outer space shall be carried out in accordance with international law, including the Charter of United Nations since Space Law is considered a lex specialis or a branch of international law.
- Obligation to use an outer space for a peaceful purpose
The principle to use an outer space for a peaceful purpose is contained in Article IV of the Outer Space Treaty. This article discusses:
1) the prohibition of nuclear and/or other weapons of mass destruction in orbit around the Earth;
2) the limitation and/or obligation to use the Moon and other celestial bodies for exclusively peaceful purposes.
From the viewpoint of the principle to use an outer space for 'peaceful purposes', the emphasis of this treaty aims at e.g. according to the Preamble to the Treaty (the common interest of all mankind in the progress of an exploration and a use of an outer space for peaceful purposes), article IV clearly deviates from those purposes. Because the Moon and other celestial bodies are used for exclusively peaceful purposes as something non-militarized, the rest of an outer space will only prohibit the weapons of mass destruction and those nuclear weapons. When we combine Article III and Article IV with the preamble of the Outer Space Treaty, we will gain a doctrine which emerges that though an outer space can be used for military purposes, it will, however, be used in a non-aggressive way.
- State's responsibility for and supervision of private activities
The State is responsible for the activities of its private sector entities in an outer space congruent with Article VI of Outer Space Treaty. In order to assure compliance with the Treaty, the State must authorize and continuingly supervise non-governmental activities in an outer space use.
- Liability for Damage
Both Article VII of the Outer Space Treaty and the Liability Convention provide State liability for damages to a third party. The `launching state' is absolutely liable for damage occurring to the surface of the Earth or aircraft in flight. In regards to other objects in an outer space, the launching state is liable when it is at fault. No description of `fault' is given by the Outer Space Treaty. A fault normally'refers to a negligence or a culpa. However, the degree of such negligence or culpa for the attachment of liability is unclear. The `launching state' is defined as the state that launches, procures a launch or from whose territory or facility the space object in question is launched.
- Registration of space objects
In Article VIII of the Outer Space Treaty and the Registration Convention, one will find an obligation of a state to exert jurisdiction and control over an object launched into an outer space if that object is registered in that State's register. Registration is carried out in national registers and an intemational register will be kept by the Secretary General of the UN.
- Retention of Jurisdiction and Control
While an object is in an outer space, Article VIII of the Outer SpaceTreaty provides that State of registry retains
the jurisdiction and control of an object launched into an outer space.
3. General Principles applicable to Patents
As an overview, there are many principles applicable to the patents;
1) The patentability of an invention:
Once something has fulfilled the criteria of an invention, it must then be shown to be patentable prior to being capable of attracting an exclusive monopoly in its exploitation. For an invention to be patentable,
a) it must be new;
b) it must involve an 'inventive step'; and
c) it must be industrially applicable5
a) An invention must be new:
The novelty requirement seems to be the most important in relation to outer space activities. Novelty is determined in reference to existing knowledge at the invention's 'prior data', which usually is the date on which an application is first made for a patent. One looks back at 'the state of the art', meaning, the sum and the total of human knowledge, which has, at any time, been made available to the public, and has, been so regardless of where in the world and in which way. In case the invention does not appear to already be a part of the state of the art, or, in case it is not possible to infer as being an implicit part of the state of the art, that invention is considered new.6 Though the determination of knowledge differs in various national systems, patent legislation in all European countries and Thailand7, which is examined by this research paper, is of the same patentable requirements because they require such absolute novelty.
b) The invention must involve an 'inventive step'.
The invention shall involve an inventive step if it is not obvious to a person with ordinary arts skill.8 The invention must include an inventive step with respect to what has been previously done in the public domain ('prior art').
c) Industrial application.
The invention shall be capable of industrial application. This requirement emphasizes the importance of practical application to the patent system.
2 )Inventions exclude from patentability
These inventions typically occur where there is a need to protect the public order, morality, human or animal life or health, or even to prevent serious damage to the environment itself. The following inventions are however not protected under the Patent Law: discoveries, theories, computer programs (although this is changing) etc.
3) Patent: An Exclusive Right9
A patent gives the patentee an exclusive right to exploit the patented invention.10 This implies that the patentee can prevent the exploitation by others and consequently he can assign or license for the right to others.11
4) Exception from an exclusive right to exploit the invention
National Patent Legislation sometimes provides some limited exceptions to the patent owner's exclusive right for an invention exploitation. This depends on the kind of exploitation, such as , a use of the patented invention by a person other than the applicant before the patent application has been filed etc.
5) Duration of a Patent
It is required by TRIPS that the minimum protection term be 20 years from the filing date, and the countries must conform to this criterion.12
6) Dual Nature of a Patent
Although a patent has national and international aspects simultaneously, the patent rights are restricted to a certain territory only. A patent granted in one country will have no impact on a patent in other country. However, a single patent application filed in one Office may "reserve" its right to apply in many other countries regulated by certain international conventions.
4. Problem and Importance of Invention Protection In relation to Outer Space Activities
In all national legal systems, an invention is protected through a grant of a patent, for instance, an exclusive right to exploit the invention. The main reason for the grant of a patent, in general, is to encourage those inventive activities in order to benefit the general public. In an exchange to this exclusive exploitation right, the patent holder is obligated to publish the invention. Patent systems have developed as a check and balance between the interests of the inventor and those of the general public.13
As this research paper concentrates on national patent laws of European countries and those of Thailand , it will then examine the issue, for instance, to what extent these patent laws are applicable to space activities. Industrial property plays an essential role for an orderly development of space activities and through huge investments, it has been made to carry out the Space Station project as well as other space programs. It will be of an utmost importance to assess the legal regime for the protection of technology use and new inventions in an outer space.14 Taking into consideration the inventions in relevance to outer space activities, we perceive that space- related inventions can be made and can be used, either on earth or in an outer space. Yet, there are some questions, such as, the conception of traditional patent systems. Can various inventions made on earth resulting from space programmes be patented? Or can various inventions made in an outer space be patented? If so, what law should be applicable ?15 The fact that the patent laws are developed in strong associations with territorial and sovereignty of state, whereas an outer space is outside any of such slat's territory. Theoretically, the space related inventions can be divided into:
a. inventions made on earth for space applications;
b. inventions made on earth for terrestrial applications as a result of space activities (including telecommunications);
c. inventions made in an outer space for terrestrial applications;
d. inventions made in an outer space for spatial applications;
e. inventions patented on earth for spatial applications used in an outer space.16
However, opining with R. Oosterlinck17, the space-related invention can be divided into only two main kinds;
1. Space - activity inventions resulting from job done on earth
In regards to this kind of space-related inventions, most of the the legal inventions generally are developed
under space programs made on earth. For instance, the inventions mentioned above in group a and group b. These inventions are the result of a space programme which does not distinguish themselves from other inventions on earth. If an invention complies with the conditions of patentability in the EU and/or in Thailand, it is capable of being protected by a patent. There are, however, some exceptional cases, in which an invention, though patentable, cannot be protected by patent, because, in the EU and/or in Thailand, the patent application filed is still judging if or not the national interest should come before an where as individual's own interests. The judgement also extends to the degree whether an space - exploitation monopoly might be harmful to the state. This is specially true tothe case of inventions which are health-, national security-, and energy- related issues .18
In addition, in regards to inventions categorized in group 'e' (being patented on earth for applications in an outer space), the patent should be applied for those countries which currently have in place the legislation to protect the use for an outer space.19 Comparing this legislation of the EU to that of Thailand, we have red in an found out that the patent law of both have no containment for one candid statement. This is the statement clarifying that the invention patented on earth for applications in an outer space will be protected for using it in an outer space. In principle, the national laws are restricted to relevant territories of the state. In case of an extension of this, explicit provisions must be enacted .20
2. Space- Related Inventions made in an Outer Space
At present, when taking into consideration the importance of protection for an invention made in an outer space, we have found out many crucial questions , such as:
1 . Can inventions made in space be protected on earth?;
2. Do the existing patent law systems adequately cover human activities carried out in an outer space?; and,
3. Does the phenomenon of a legal vacuum occur in the area of conception as well as the use of inventions in an outer space?
In order to answer all these questions, we should first concern ourselves with the relation between the concept of intellectual property rights and an outer space. As far as we realize, there have been no inventions made in an outer space up until now. However, some space experts have predicted for certain that inventions made in space will take place within the 21st century. Furthermore, if we analyze the kinds of space- related inventions mentioned above in the group c and group d, we will realize that the key point of these categories will relate to jurisdictional aspects. In the meantime, we must also conclude that a jurisdiction in an outer space is rather an unclear situation. It will pose quite a number of problems for an international community with respect to an application of national law and/or the choice of law, since there is an absence of state practice and precedents recently.
Jurisdiction is the term used to describe the power being exercised by a state over any persons, property, or events. As for an aspect of sovereignty, jurisdiction refers to judicial, legislative, and administrative competence and is normally applied within the territory of the state, and to those nationals of that state. Therefore, according to the principle of a territoriality, it is similar to the notion of traditional patent systems which were developed in strong associations with territoriality and sovereignty of states. Due to the fact that patents granted in one country do not have an impact on the other countries.21 Whereas an outer space, as specified in the Outer Space Treaty 1967, is outside any state's territory and sovereignty because this Treaty said that an outer space is not subject to national appropriation and that free use shall be carried out for the benefit and interests of all countries.
At first glance, the concept of legal regime governing an outer space is quite contrary to that of patent law. Inventions made in space will or may, indeed, get serious problems of protection in intellectual property rights against infringements. Although there is still an argument on this issue, it is generally accepted that the Space Treaty does not prohibit commercial space activities.22
In consideration to jurisdiction and space activities, an Outer Space, the High Sea and Antarctica alike, considered itself as a res communis , that is not subject to any national appropriation.23 As far as international law is concerned, it does not normally fall under any national sovereignty. However, on the general principle of the Outer Space Treaty (like the flag-law principle of the Law of the Sea), a state party to the Treaty, whose registry of an object was launched and carried into an outer space, shall retain a jurisdiction and a control over space object.24 Thus, it seems that registration gives the solution, which state's jurisdiction and control will be applicable to, when dealing with a space object. Moreover, in regards to an applicability of national patent laws to outer space activities, the problem of territorial limitation of national some interesting problems, for instance, how can one deal with infringements of intellectual property rights in an outer space, or how can an inventive activity actually take place on board a Space Station, etc.
For the issues of protecting inventions in an outer space, we have found out that an applicability of national patent regulations in Thailand and the European countries are in principle enforceable only within the territorial boundaries of a given country. Therefore, problems will occur when an invention is used or infringed in an outer space. Since there is no provision of the patent law applicable to the extra-territorial area of an outer space. Some provision of the Outer Space Treaty can be defined as the main concept for exercising (extra-territorial) jurisdiction over space objects.25 It is also for the patentability of invention in space, as the International Patent Treaties (namely, the Paris Convention, the Patent Cooperation Treaty, and the TRIPS Agreement, etc.) mainly address non-jurisdiction aspects of national patent systems similar to the validity and the entitlement of a patent. Thus, in order to secure specially exclusive rights of inventors, it seems to be tolerable in an outer space. The writer opines that we can make use of these international agreements with inventions created in an outer space. For instance, Article 27 TRIPS stated "...patents shall be available and patent rights enjoyable without discrimination as to the place of invention..." or the term `vessels' in Article 5 ter of the Paris Convention regarding temporary presence could be interpreted by a panel so as to include a spacecraft. Therefore, we can imply that Thailand and the EU can apply these International Agreements to the invention made in an outer space.
In order to protect the exclusive rights of inventors, we should establish a special international legal regime for a governing of IPRs in an outer space. Such intergovernmental agreement on the International Space Station was signed on 29 September 1988 by the United States of America, Japan, Canada, and ten other ESA member states.26 The purpose of the IGA is to establish a long-term international cooperation framework among the partners for a development and an utilization of a civil international space station for peaceful purposes.27 With respect to jurisdiction and IPRs, Article 21 of the IGA provides that each partner will have jurisdiction over its own registered element, in regards to the basic principle of both the Outer Space Treaty and the Registration Convention. It also aims at resolving issues relating to Intellectual Property Rights developed or used on board the space station.28 Thus, any activity occurring in or on a space station flight element shall be deemed to have occurred in the territory of the partner state which has registered that element. Each partner can extend the scope of its patent law application to the element it provides. Concerning ESA-registered elements, any European partner state may deem that the activity has occurred within its own territory.29
5. Conclusions
As far as the analysis of this research paper goes, it seems obvious that the EU and Thailand are facing a legal vacuum in the area of inventions protection in an outer space. This is especially true for Thailand since its existing national patent laws do not adequately cover invention made in an outer space. Although the patent law of the European countries is much similar to that of Thailand, Germany is the only country ratifying the Inter-governmental Agreement (IGA), to declare its Patent Act to apply for the covering IPRS created in an outer space (in an ESA registered element). Consequently, amendments should be made to the existing patent laws of Thailand and those of the European countries in order to promote the development of space activities and to respond primarily to the need of protection for initial investments by the states and by the users in the future.
*This paper was supported the research grant by The Centre for European Study, Chulalongkorn University, 1998.
**Dean of the Faculty of Law, Ratchathani-Udon College of Technology, Udonthani Province
1 LH.Ph. Diederiks - Verschoor, An Introduction to Space Law, the Netherlands : Kluwer Law and Taxation Publishers, 1993, p.4
2 G.C.M. Reijnen and W.de Graaff, The Pollution of Outer Space, in particular orf the Geostationary Orbit, The Netherlands: Martinus Niihoff Publishers, 1989, p.2-3
3 International Space University, KEY TO SPACE : An Interdisciplinary approach to Space Studies, houston and Rycroft editors, McGraw-Hill : USA, 1999, p.12-5
4 Gennady Zhukov and Yuri Kolosov, International Space Law, trans by Boris Belitzky, Moscow : the Novosti
5 Aritcle 27 (1) of TRIPs Agreement, Jeremy Phillips and Mison Firth, Introduction to Intellectual Property
register Law, Second edit, London : Butterworths, 1990, p. 39; and, Section 5 of Thailand Patent Ad B.E. 2542
9 European Space Agency, Intellectual property Rights and Space Activities in Europe, ESA Publication Division: the Netherlands, 1997, p.14
12Ibid; Section 35 of Thai Patent Act B.E. 2542; and, European Space Agency, Intellectual property Rights
and Space Activities in Europe, ESA Publication Division: the Netherlands, 1997, p. 15
13 European Space Agency, Intellectual property Rights and Space Activities in Europe, ESA Publication
Division: the Netherlands, 1997, p.1
15 R. Oosterlindc, Intellectual Property and Space Activities, the Proceedings of the 26 Colloquium on the law of outer space, IISL. Oct 10-15, 1983, p. 161
16 European Space Agency, Intellectual property Rights and Space Activities in Europe, ESA Publication Division: the Netherlands, 1997, p.4-5
1 7 R. Oosterlinck, Intellectual Property and Space Activities, the Proceedings of the 26 Colloquium on the law of outer space, IISL, Oct 10-15, 1983
26 Sweden joined the IGA in June 1989 to become the tenth European participating state and later the Russian federation joined this Agreement too.
27 Article 1 of the intergovernmental Agreement on the International Space Station 1988
28 Ibid; Article 21
29 European Space Agency, Intellectual property Rights end Space Activities in Europe, ESA Publication
Division: the Netherlands, 1997, p.43
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