Application of intellectual property rights to outer space activities : an adaptive regulatory approach in the context of space commercialization

Abstract

The regulatory environment for outer space activities has changed from space monopoly to space commercialization, which certainly requires a proper intellectual property (IP) legal regime. Yet, the IP international treaties have not explicitly considered the issue of IP protection in outer space in their provisions, and in the provisions of the five outer space treaties, none explicitly address IP. This has substantially discouraged states and private entities from engaging in space activities. The objective of this thesis is to provide a regulatory approach that would allow the application of IP to outer space activities in a pragmatic, enforceable and feasible manner. It is argued that the construction of a new IP legal regime specifically for outer space is unlikely to succeed as this approach lacks a solid theoretical foundation. Nevertheless, the provision of Art. VIII in the Outer Space Treaty (OST), can be legitimately employed as a means of deviation to indirectly permit the protection of IP in space under the existing international legal framework. Such an approach is considered to be the alternative regulatory approach which is not only more pragmatic, enforceable and feasible, but can properly address the current and near-term needs of space development. This thesis also investigates the unique legal features of patent and copyright protection in outer space. The two branches of IP legal regime require specific legal analysis under the context of space commercialization.