Opinion: IP, Outer Space, AND Why WIPO’s Madrid/PCT Can Ne’er Work W.R.T. This!?

 

There are contradictory terms w.r.t. Outer Space Treaty, TRIPS, and the jurisdiction involving where IP Rights can be covered; within or beyond Karman Line!

Albeit examples are present, like T. 35 U.S.C. S. 105 mentions that, any invention made used sold in outer space object under jurisdiction and control of US shall be considered to be made within the US, along with some caveat of International Agreements. Whilst in other cases, it is either, on whose registry an object is launched, retains jurisdiction, control, rights; unless, subject to international agreements (Article VIII)!

The section as mentioned in the USC is for Patents. And albeit there are Sections alike S.49 of Patents, where on Foreign Vessels, no patent rights are infringed, subject to certain conditions, BUT, could the term ‘Vessel’ be also expanded to the Outer Space objects too? No Idea! Then what about Trademarks? Copyrights? Geographical Indications? Designs? Domain Name Disputes?

Copyrights are covered in accordance with BERNE Convention, without any need for the formality; but could that be invoked, in the Outer Space? If the launching origin claim is considered as above, then it can be, wherein the author would be the one who is drafting/crafting them, and, under the employer-employee inter-intra-government-bodies agreements, the launching state-non state entity should become the owner, as an implicit assignment! (Verify it).

As, in the present times, there’s no such higher version of ISS agreement (a per my knowledge, so please cross-check it), can WIPO’s pathway ever work, if ever included for the Outer Space IP Protection? Just an opinion, and I think, it would be in contravention, not only with the local laws, but also with the Outer Space treaties too. How?

What is basic foundation of the Outer Space Treaty? Article II:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

And what is Madrid, PCT? Wherein each country takes responsibility for accepting legality or validity of each IP rights. And if one country denounces it, other won’t be under the obligation to denounce it also. The more important point, when there shouldn’t be national appropriation by claim of sovereignty, then how it could become legally viable in the outer space? VIDE, something similar to UDRP? Again, in that case, the parties involved can appeal at the local jurisdiction too. So, where the parties would appeal, if in case, the dispute arises, as there won’t be any local jurisdiction involved, and the laws governing the IP Laws varies state by state.  

Question is, when there is no local territorial jurisdiction authority existing on MARS OR MOON, or BEYOND, so how would you extend your IP Rights therein, under the ambit of Madrid, PCT, whilst electing/selecting designated convention territorial regions; and even if you include, then no one can own any part of the Outer Space, or any of the Celestial Bodies, in accordance with the Treaties; and even Collectively no one can ever claim any part of the Outer Space! Thus, herein the Madrid and PCT would FAIL the litmus test, BECAUSE, up there, there’s no one to accept or denounce at the local level, and if in case the example of UDRP is introduced, it won’t work for the above reasons. Firstly!

Now, if you sign a new treaty, what’s the point? BERNE got butchered! U.N. is equivalent to UN! And as if anyone would listen! Yes, in Trademarks, there won’t be any problem! As only few state/non-states, entities can afford to escape in the outer space today, and initially all the trademark related issues are sorted territorially herein on the Earth only, even if sent VIA other launching stations, similar to Amazon, Flipkart, Alibaba etc, where in that case, already compliance is followed for floating the products online. But once, colonies be settled on the MOON or MARS, Or BEYOND, then of course, there could be a reason of IP infringement. But whose Colonies we are taking about?

The above example elucidates why WIPO’s provision won’t work, until, new Treaties are signed, which would be of no use again, if only one or two nations remain capable of sending humans to the outer space. Then what’s the point of even IP claims, as only these two or three nations can sign Reciprocal Treaties to avoid IP infringement! Why even debate then! 😊

© Pranav Chaturvedi