Intellectual Property Implications in the Context of Space Exploration with a Focus on European Space Agency Rules and Regulations

Authors: Linda Ana Maria Ungureanu

Abstract:

This article details the manner in which European law establishes the protection and ownership rights over works created in off-world environments or in relation to space exploration. In this sense, the analysis is focused on identifying the legal treatment applicable to creative works based on the provisions regulated under the International Space Treaties, on one side, and the International Intellectual Property (IP) Treaties and subsequent EU legislation, on the other side, with a special interest on European Space Agency (ESA) Rules and Regulations. Furthermore, the article analyses the manner in which ESA regulates the ownership regime applicable for creative works, taking into account the relationship existing between the inventor/creator and ESA and the environment in which the creative work was developed. Moreover, the article sets a series of de lege ferenda proposals for the regulation of IP matters in the context of space exploration, the main purpose being to identify legal measures and steps that need to be taken in order to ensure that creative activities are fostered and understood as a significant catalyst for encouraging space exploration.

Keywords: ESA guidelines, EU legislation, intellectual property law, international IP treaties.

References:

[1] Space Law Treaties and Principles, available at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.
[2] Regulations of the European Space Agency, General Clauses and Conditions for ESA Contracts, Paris, 5 July 2019, and Regulations of the European Space Agency, Rules on Information, Data and Intellectual Property, Paris, 23 April 2014.
[3] Regulations of the European Space Agency, Staff Regulations and Rules, Paris, December 2021.
[4] International IP Treaties, available at https://www.wipo.int/treaties/en/.
[5] Agreement on Trade-Related Aspects of Intellectual Property Rights, available at https://www.wto.org/english/docs_e/legal_e/31bis_trips_01_e.htm.
[6] Dr. A. Bennett, S. Granata, When Private International Law Meets Intellectual Property Law, WIPO, available at https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1053.pdf.
[7] Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, ELI http://data.europa.eu/eli/reg/2017/1001/oj.
[8] European Commission, Unitary Patent, information available at https://ec.europa.eu/growth/industry/strategy/intellectual-property/patent-protection-eu/unitary-patent_en.
[9] The European Patent Convention, available here https://www.epo.org/law-practice/legal-texts/epc.html.
[10] 10. A.-M. Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79, published August 1994.
[11] Vienna Convention on the Law of Treaties, 1969, available at https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
[12] Intellectual Property and Space Activities, Issue paper prepared by the International Bureau of WIPO, published April 2004, available at https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf.
[13] Judgment of 4 September 2014, Zeman, C 543/12, EU:C:2014:2143, paragraph 58.
[14] Judgment of 15 April 2021, Eutelsat, Case C‑515/19,, EU:C:2021:273, paragraph 64.
[15] Intellectual Property and Space Activities, Issue paper prepared by the International Bureau of WIPO, published April 2004, available at https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf.
[16] Dr. Y. Zhao, Protection of Intellectual Property Rights in Outer Space, IAC-06-E6.2.A.06; S. Tim, A phantom menace? Patents and the communal status of Space, Victoria University of Wellington Law Review, 34(3), 545–570. https://doi.org/10.26686/vuwlr.v34i3.5769.
[17] General Secretariat of the Council, Orientations on the European contribution in establishing key principles for the global space economy, November 2020, available at https://www.consilium.europa.eu/media/46730/st12851-en20.pdf.
[18] Regulations of the European Space Agency, Staff Regulations and Rules, Paris, December 2021.
[19] European Patent Office, Patent Insights, available at https://www.epo.org/searching-for-patents/business/patent-insight-reports.html.
[20] The ESA Rules are available at https://esastar-publication-ext.sso.esa.int/supportingDocumentation/details/8