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
SUMMARY

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 five outer space treaties explicitly address the legal issue. One... (see full summary)

 
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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 & intl 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 poLy 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.

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