A first analysis of the complex environment of the activities performed in Outer Space has been presented and discussed during the first ECSL/Spanish NPOC Workshop on IPRs in Outer Space, which was held in Madrid in May 1993. At that Workshop, the participants, who addressed the issues in the European context, expressed their interest in continuing the study and in broadening its scope beyond Europe. Consequently, a Seond Workshop, even more international in scope, is being organised at ESA Headquarters in Paris at the end of 1994.
The Law of Intellectual Property relates to protection for creations of the human mind. Intellectual property laws typically grant to the author of the intellectual creation a set of exclusive rights for exploiting and benefitting from the creation, which are limited in scope, duration and geographical extent.
The policy behind protecting IPRs has at least two aspects. Firstly, intellectual property protection is intended to encourage the creativity of the human mind for the benefit of the public, by ensuring that the advantages derived from the exploitation of the creation will, if possible, inure to the creator himself, in order both to encourage the creative activity and to afford the investors in research and development a fair return on their investments.
The second policy consideration is to encourage the publication, distribution and disclosure of the creation to the public, rather than keeping it secret. It also encourages commercial enterprises to seek out creative works for profitable exploitation.
The European Space Agency, as an R&D organisation, seeks to extend technical knowledge and to develop new technologies. It develops facilities for conducting experiments, either itself or by third parties. At the same time, however, it develops facilities for operational use (space applications), improving product quality, diversifying activities, extending expertise, using more modern and complex management methods, and improving competitiveness.
As an inter-governmental body, ESA has certain general obligations to fulfil, including protecting the interests of its Member States without discriminating between them.
On the basis of principles laid down in its Convention, ESA has drawn up a number of rules governing intellectual property: contract regulations, provisions in the implementing rules of optional programmes, and clauses contained in international agreements.
Article III of the ESA Convention (Information and Data) establishes the principle that Member States and the Agency shall facilitate the exchange of scientific and technical information pertaining to the fields of space research and technology and their space applications. It also stipulates that any scientific results shall be published or otherwise made widely available, after prior use by the scientists responsible for the experiments.
Given the diversity and abundance of intellectual-property provisions, the need to standardise them into a single document soon became apparent.
In 1989, the ESA Council adopted a set of rules on information and data (ESA/C(89)95 Rev. 1), based on Article III of the Convention. The document contains five chapters setting out the basic principles concerning the various sources of information and data, i.e. ESA staff, contractors and experimenters.
Status of intellectual inventions and creations produced by ESA staff members
A number of intellectual inventions or creations exploited or used by the Agency and its Member States stem from work done by ESA staff members. Various provisions in the ESA Staff Regulations establish who owns intellectual property rights to such creations, the status of the inventor or creator, and how to treat inventions or works produced within the Agency.
Rule 4.2 of the Regulations lays down the following principles:
The principles summarised above are repeated Chapter I of the Council document on information and data.
Status of intellectual inventions and creations produced by contractors
The Agency assigns numerous R&D tasks to private or public bodies such as universities, research laboratories and firms specialising in the space field. To the end, it concludes with these partners research contracts under which the contractors are bound to make available to the Agency any resulting inventions or technical data under free, non-exclusive and irrevocable licences.
The intellectual property clauses contained in such contracts are based on Chapter II of the Rules on Information and Data (ESA/C(89)95, Rev. 1) and the special conditions applicable to intellectual property rights and other related rights applicable to study, research and development contracts (Clauses 36 to 42 of the General Clauses and Conditions for ESA Contracts, ESA C/290 Rev. 5).
The contract binds the parties in a number of respects:
Every year, ESA files about 20 patent applications relating to inventions made by staff members. A special internal group, called the Patents Group, studies the request submitted by the staff member to file a patent application. It assesses both the patentability of the innovation, as well as ESA's interest in the granting of a patent, which is determined by the practical use that the Agency will actually make of the product or process. A 'Catalogue of ESA Patents' (ESA SP-1131) is available (from ESA Publications Division) which is regularly updated.
Intellectual property also covers those rights protecting the financial and moral interests of authors.
There are two main systems for copyright protection:
The moral right affords the author the right of disclosure, which gives him the right to decide whether or not to expose his work to the general public, and the right of withdrawal of the work from public use against payment of compensation for damages caused to any person who has previously received proper authorisation to use the work. Furthermore, the moral right title includes the right to claim authorship of the work (have the named of the author and the title of the work mentioned in connection with the use of the work), and the right to object to unauthorised modification of the work.
A European Union Directive of 29 October 1993 has harmonised the duration of the protection of author's right and copyright to 'the duration of his/her lifetime and for 70 years following his/her death'.
This protection is recognised for all work still protected in a given Member State' s territory. Consequently, the Directive has the effect of prolonging the duration of protection for works which were already in the public domain, since certain Member States of the European Union recognise a delay of 50 years after the author's death.
Once the economic rights have lapsed, the work becomes public property, meaning that anyone can exploit the work free of charge without having first to obtain authorisation (nevertheless, the citation of the author may be imposed).
In Great Britain, on the other hand, the protection of the work is not subject to the completion of formalities, and the period of protection lasts for the lifetime of the author and for 50 years following his/her death.
In ESA, the following types of work, performed by ESA staff members, are covered by copyright: all the original publications, such as books, newsletters, brochures, etc.; audiovisual works; photographic works of any kind; technical works such as drawings, illustrations and plans.
The trade mark is a symbol that distinguishes the products and services of a given manufacturer or retail merchant from those of another.
As for patents, the trade mark confers on its holder the exclusive monopoly of exploitation. The holder is also under an obligation to make use of the trade mark and to pay annual installments in order to maintain his/her rights. The period of protection of the monopoly can be anything from 7 to 20 years and can be renewed indefinitely.
The choice of trade mark
In principle, there are no restrictions imposed on the choice of mark. One can choose:
ESA trade marks
ESA, which has no commercial remit, has chosen to protect the names of its programmes by means of registered trade marks for those programmes that are conceived and developed with a view to future commercialisation by a company set up for that purpose (e.g. as under the Ariane Programme, which is currently the only example).
In practice, ESA's Legal Department pays attention to and investigates the following before filing a trademark:
Currently, ESA owns the following trademarks: ARIANE; ARTEMIS; ESAQUEST; EARTHNET; ERS; HERMES; IRS; OLYMPUS; EUROPE'S SPACEPORT and METEOSAT (this last mark was registered by ESA in 1983 in France and Germany. In October 1991, the rights thereto were transferred to Eumetsat. ESA retains the right to use the mark for its own purposes).
Protection of remote-sensing data is a subject that was initially taken up by a study commissioned by the European Centre for Space Law (ECSL) in 1989, and was followed up by a joint ECSL/ESA/European Commission study. Here, the main issue was whether remote-sensing data could be protected under existing copyrights in the European States. This question is important for ESA in order to establish a controlled flow of the data gathered by the ERS satellites and to stimulate private investment in the remote-sensing activities. The results of the study indicated clearly that existing copyright laws did not offer adequate protection and that additional actions were needed.
Patent protection and microgravity activities
The main legal issues are:
When trying to answer question (a), one has to bear in mind that European national regulations dealing with industrial property are not concerned with the actual location of the invention's conception. It is therefore irrelevant under this regulation where the invention was made and one may apply for a patent with regard to inventions made in outer space under any national or European system. The location could, on the other hand, prove to be relevant where the patent law of a given country provides that for certain types of inventions, i.e. those relating to technologies having a direct bearing on national security, the first application for a patent must be filed in the country where the invention was made. This provision has the purpose of allowing security clearance for the invention before it is published or filed in a foreign country.
As regards the use of a nationally protected invention in outer space, or the infringement that may result from that use, the situation is different. An authorised or non-authorised use will not bear the legal consequences in those European States that have not recognised the object located in outer space, where the use is made, as being an extension of their territory.
In principle, national patents are enforceable only within the territorial boundaries of a given country. The same principle applies within the framework of the European Patent Convention, which allows for (art.64 EPC) the acquisition of a 'bundle' of national patents of the countries party to the Convention, indicated in the application; the patent therefore has the effect of a national patent in each of the countries mentioned in the application.
Outer space, similar to the high seas and Antarctica, is not subject to national appropriation and does not fall under any national sovereignty. This implies that outer space cannot be appropriated by use or claim or any other means (Art. II of the Outer Space Treaty). However, a State retains jurisdiction and control over objects it sends into outer space (Art. VIII of the Outer Space Treaty). With regard to the applicability of national patent regulations, problems occur when an invention is used or infringed in outer space, because these regulations are only applicable in the territory of the specified State which, by definition, excludes the extra-territorial areas of outer space.
This situation led to the amendment of the patent law in the United States. The legislators made this law also applicable to inventions in outer space when such inventions take place onboard space objects coming under the jurisdiction or control of the United States. As we will see later, the same approach inspired the German ratification of the Space Station IGA.
Turning to question (b), no provision contained in European legislation or regulations would retain the location of the conception of an invention as a criterion for granting a patent application. However, a distinction is made in US patent law between foreign inventive activity and domestic inventive activity. In contrast to the patent laws of most countries, where the patent is awarded to the first person to file a patent application on the product or process, a patent will be issued under US law to the first person to invent the product or process he claims in his patent. The first to invent is said to have 'priority' over others claiming the same invention. Priority is determined by reference to certain key events such as conception, reduction to practice, and diligence.
Another important characteristic of US patent law concerns activities considered to be 'prior art'. Patent law distinguishes between domestic and foreign activity for the purpose of determining what falls under the category of prior art. For instance, patents and printed publications, no matter where they originate, are prior art, but items previously known, used or invented are considered to be prior art only if they occur within the United States.
Finally, the definition of infringment contained in US patent law as being the unauthorised conception, use or sale of an invention within the United States, creates the same problems of applicability of patent law as in other countries.
The example of the Space Station
The Inter-Governmental Agreement (IGA) on the International Space Station*, signed on 29 September 1988 by countries representing four partners - the USA, Japan, Canada and ten ESA Member States - is probably the most complex and interesting example of a long-term international cooperative endeavour in space.
The intrinsic characteristics of the exploitation and utilisation of the International Space Station generate corresponding legal implications. Such characteristics include:
The agreement between the Partners, described in the IGA, is based on a system that is complex to manage and which has been the subject of lengthy discussions. These discussions touched upon, inter alia, the registration, jurisdiction and control of flight elements considered as space objects under Article VIII of the Outer Space Treaty.
These discussions focussed especially on the necessity of complying with one of the fundamental principles of outer space law, which is stated in Article II of the Outer Space Treaty, under which outer space is not subject to national appropriation in whole or in part.
The solution that has been accepted by the signatories of the IGA is that each 'Partner' will register each element it provides as a space object, thereby establishing its jurisdiction and control over such elements, i.e. the ability to issue regulations and have them enforced. The same principle applies to persons onboard the Space Station who are nationals of the Partner States.
This why Article 1 of the IGA, which defines the scope of the Agreement and its purpose - to establish 'a long-term international cooperative framework ... for the development ... and utilisation of a ... Space Station for peaceful purposes' - should be read in conjunction with Article III of the Outer Space Treaty, which stipulates that the exploration and use of outer space shall continue in the interests of maintaining peace and promoting scientific cooperation at international level. Similarly, the possibility of exercising jurisdiction and control over Space Station elements (Article 5 of the IGA) does not infringe upon Article II of the Outer Space Treaty, which bars any claim of sovereignty over outer space.
The IGA and the provisions pertaining to IPRs: specific issues for the European Partner.
Article 21 of the IGA aims at resolving issues relating to IPRs developed or used onboard the Space Station, on the basis of the principles explained above.
The two main questions dealt with in the IGA are the aquisition of IPRs over results obtained from activities carried out onboard the Space Station, and the protection against infringement of IPRs (granted on Earth) that may occur onboard the Space Station. The fundamental principlelaiddown in theIGA isthatthepartof the Space Station complex in which the invention was made is deemed to be an extension of the territory of the State that registered that element.
The approach adopted by the Space Station Partners raises a general question about the applicability of the jurisdiction and control criteria to solve the problem of the territorial application of patent laws and a number of questions relating to the European Partner States.
Firstly, Article 21.2 of the IGA establishes a legal fiction regarding the ten European Partner States: these States are deemed to be located on a single territory which is subject to one set of regulations. It goes without saying that the ten European Partner States that are signatories of the IGA are not located on a single and unique 'territory'. A consequence of the legal fiction is therefore that, in order to implement the IGA, the European Partner States will have to establish IPR provisions at national level which are not only compatible with those established in the other European Partner States, but also appropriate for responding to the needs expressed in the IGA, a process that could be described as a standardisation of legal texts.
The process of legal harmonisation called for by the IGA imposes a certain burden on the signatory States. As a first step, the States concerned will have to proceed with the identification of possible obstacles to be surmounted if harmonisation is to be achieved and, as a second step, they must assess the results of the harmonisation process already underway in Europe in the field of IPRs in order to determine whether such a process can influence or respond to the need for the protection of IPRs designed or used onboard the Space Station.
The procedures applicable to the ratification of treaties differ from State to State and one has to bear this simple fact in mind when considering the implementation of IGA provisions. The ratification procedure can involve transforming provisions provided by the IGA into national law (by legislative process) or incorporating these provisions without recourse to any procedure whatsoever - in which case the IGA enters into force, bypassing the legislative process of the State (immediate validity).
The Space Station IGA has, to date, been ratified by six European States: Germany, The Netherlands, Norway, Denmark, Spain and Italy. Germany exercised the right laid down in Article 21.2 of the IGA by enacting legislation on 13 July 1991 for the purpose of ratifying the IGA. Article 2 of this legislation stipulates that for the purposes of German copyright and industrial patent legislation, an activity occurring in or on an ESA-registered element is deemed to occur within German territory. The remaining provisions of Article 21 of the IGA are considered to be self-executing, and for this reason Germany has not felt it necessary to enact further legislation.
The other European States, having ratified the IGA, did not consider it appropriate to enact legislation and have given immediate and direct validity to the provisions of the IGA. The United Kingdom, for its part, has informed ESA that it intends to enact legislation in line with the provisions of Article 21 of the IGA and is currently studying the scope of changes to be made to its national law in order to ratify the IGA.
The IGA entered into force on 30 January 1992, the conditions prescribed in its Article 25(a) having been fulfilled with the ratification by Japan and the acceptance by the USA. The IGA has not yet entered into force for Canada and the European signatory States, these two Partners having so far failed to ratify it.
The IGA will enter into force for the European Partner only when it is ratified by four States contributing at least 80% to the Columbus Development Programme. At present, the six signatory States who have ratified the IGA contribute to a level of 77.5% to the Columbus Programme, whose objective is to implement the European part of the Space Station cooperation. Therefore, ratification by France or Belgium will be needed to permit the entry into force of the IGA for the European Partner.
The necessary harmonisation process referred to above is obviously not made easier by the procedural aspects, i.e. the numerous procedures which need to be carefully monitored and guided in order to transform the legal fiction of the IGA into reality.
The lack of coordination regarding solutions adopted or to be adopted by the ten European States could significantly affect the development of a legal system that is uniformly applicable to the design and utilisation of IPRs onboard the Space Station. For this reason, to provide an adequate framework for the protection of rights provided for in the IGA, ratification of the IGA by all the European States through the same procedure as followed by Germany would be a worthwhile development.
In conclusion, the role of Intellectual Property in space activities in general, and in those of ESA in particular, is important in order to protect and promote the results of R&D and to encourage industry to select creative works for exploitation.
The policy developed by ESA in this field is in line with the main characteristics of Intellectual Property, i.e. it encourages publication, distribution and disclosure of the innovation to the public, in order to stimulate the improvement of scientific knowledge.
The example of the International Space Station shows that new actions have to be undertaken in order to arrive at a coordinated and harmonised legal framework for the IPRs of the ESA Member States.