Theoretical Territoriality Paradox for the Intellectual Property Protection in Outer Space and Its Regulatory Approach for Reconciliation

• Author: Zhijie Chen
• Position: Postdoctoral Fellowship of the Faculty of Law, University of Macau
• Pages: 53-74

Theoretical Territoriality

Paradox for the Intellectual

Property Protection in Outer

Space and Its Regulatory

Approach for Reconciliation

∗ Postdoctoral Fellowship of the Faculty of Law, University of Macau. LL.M. (Univ. of Macao), MPhl. & Ph.D.(UHK).

ORCID: https://orcid.org/0000-0002-6546-7352. I thank Professor Yun Zhao from the Faculty of Law of the

University of Hong Kong and Professor Rostam J. Neuwirth from the Faculty of Law of the University of Macau for

offering instructive advice during my writing. All errors are my own. He may be contacted at: zhijiechen@um.edu.mo /

Address: Faculty of Law, University of Macau, E32, Avenida da Universidade, Taipa, Macau, China.

All the websites cited in this article were last visited on May 5, 2020.

Zhijie Chen

∗

The sustainable development of outer space demands the protection of intellectual

property in outer space. However, it worth noting that the intellectual property

international treaties have not explicitly regulated in their provisions the issue of

intellectual property protection in outer space, neither the provisions of the ve outer

space treaties explicitly address the legal issue. One suspicious rationale resulting

in this legal status is the theoretical territoriality paradox between the legal regimes

of outer space and intellectual property. This article aims to unveil the theoretical

territoriality paradox by comparing the two legal regimes of outer space and intellectual

property. It then moves to argue that the paradox is proved to be a theoretical problem

since the legal value of Article VIII of the Outer Space Treaty elaborately reconcile the

theoretical paradox and practically provides a self-contained mechanism that would

permit guaranteed levels of intellectual property rights protection in outer space.

Keywords

Outer Space, Intellectual Property, Territoriality Paradox, OST

J. East asia & int’l l. Vol. 13/No.1 (2020); 53-74

Publication type : Research Article

Section : Article

DOI : http://dx.doi.org/10.14330/jeail.2020.13.1.03

54 Zhijie Chen

I. Introduction

The commercialization of outer space has become a distinct characteristic of space

development over the past few decades. Many non-governmental entities have

taken the opportunity to participate in space activities as they believe that space

exploration can provide a handsome prot in return for their investment when their

space projects succeed.

1

Considering a potentially significant financial reward, the

space industry has seemingly undergone a paradigm shift from state monopoly

to private business, as well as unilateral activity to co-operational, international,

and contractually-based arrangements.

2

Against such changes in the regulatory

environment, space investors have started to understand that intellectual property

rights (“IPRs”) protection is of great importance for continuing their business

development, especially those activities that concern space research. While the

increasing tendency towards space commercialization has increased the need for

IPRs protection in outer space, the outer space treaties neither contain any provisions

that directly mention IPRs, nor existing intellectual property (“IP”) treaties explicitly

state the application of IPRs in outer space. The absence of a solid legal basis in space

law that grants IPRs to non-governmental entities may result in a dilemma for space

industries, so that there is the need for legal clarication. In fact, discussions on the

application of IPRs to outer space activities have been ongoing for several decades,

but results from these discussions have not been satisfying.

3

Legal uncertainties

concerning whether the outer space treaties will admit IPRs in outer space remain

till now. One of the predominant rationales that have contributed to such legal

uncertainty is the theoretical territoriality paradox between the legal frameworks of

outer space and IP.

4

The purpose of this article is to unveil the theoretical territoriality paradox

between the two different legal regimes of outer space and IP and examine how

this paradox is reconciled under the existing international legal framework. This is

1 J. Logsdon, RonaLd Reagan and the space FRontieR 171-92 (2019). See also R. Mitchell, Into the Final Frontier: The

Expanse of Space Commercialization, 83 Mo. L. Rev. 438-42 (2018).

2 D. Irimies, Promoting Space Ventures by Creating an International Space IPR Framework, 33 euR. inteLL. pRop. Rev.

35-6 (2011). See also Y. Zhao, The Role of Bilateral and Multilateral Agreements in International Space Cooperation,

36 space poL’y 12-8 (2016).

3 The legal research on this topic has started since 1970s. See e.g. H. Saragovitz, The Law of Intellectual Property in

Outer Space, 17 ptc J. Res. & educ. 86-98 (1975); R. abeyRatne, space secuRity Law 83-106 (2011); M. Cuevas, The

Protection of Intellectual Property Rights in Outer Space Activities, 12 J. inteLL. pRop. L. & pRac. 714 (2017).

4 Supra note 2, at 38-42.