Intellectual property rights and space activities

On 5 and 6 December 1994, a two-day workshop was organised by the European Space Agency (ESA) and the European Centre for Space Law (ECSL) at ESA's Headquarters in Paris on the theme ‘Intellectual property rights and space activities: a worldwide perspective’. It was attended by some 90 participants and 16 papers were presented, analysing legal and policy issues with regard to intellectual property rights (IPRs) and space activities in a world context.     

Current legal issues pertaining to space solar power systems

This paper discusses a range of legal issues that need to be considered in planning for a space solar power system. Because objects placed in space are inherently international, the paper primarily looks at international law that affects launching, construction, operation, property rights, the environment, communication and liability. International coordination early in the planning process is urged to make space solar powers systems a reality more speedily.     

Stepping stones toward global space exploration

Several nations are currently engaging in or planning for robotic and human space exploration programs that target the Moon, Mars and near-Earth asteroids. These ambitious plans to build new space infrastructures, transport systems and space probes will require international cooperation if they are to be sustainable and affordable. Partnerships must involve not only established space powers, but also emerging space nations and developing countries; the participation of these new space actors will provide a bottom-up support structure that will aid program continuity, generate more active members in the space community, and increase public awareness of space activities in both developed and developing countries. The integration of many stakeholders into a global space exploration program represents a crucial element securing political and programmatic stability. How can the evolving space community learn to cooperate on a truly international level while engaging emerging space nations and developing countries in a meaningful way? We propose a stepping stone approach toward a global space exploration program, featuring three major elements: (1) an international Earth-based field research program preparing for planetary exploration, (2) enhanced exploitation of the International Space Station (ISS) enabling exploration and (3) a worldwide CubeSat program supporting exploration. An international Earth-based field research program can serve as a truly global exploration testbed that allows both established and new space actors to gain valuable experience by working together to prepare for future planetary exploration missions. Securing greater exploitation of the ISS is a logical step during its prolonged lifetime; ISS experiments, partnerships and legal frameworks are valuable foundations for exploration beyond low Earth orbit. Cooperation involving small, low-cost missions could be a major stride toward exciting and meaningful participation from emerging space nations and developing countries. For each of these three proposed stepping stones, recommendations for coordination mechanisms are presented.     

Law aboard the space station

For over two decades, multilateral treaties have governed the spaceborne activities of nations in a variety of situations. In recent years, however, it has been apparent that a legal vacuum exists concerning the activities of individual citizens who are sent into space by the spacefaring nations. Few laws exist which are specifically intended to regulate private individuals and entities in space. This situation has led to uncertainty for potential participants in NASA's international Space Station programme. Moreover, it now appears that the Intergovernmental Agreement concerning the Space Station may not solve the problem.     

Outer space exploitability: International law and developing nations

This article outlines the principles upon which international space law is based. Space law has been successful so far in benefiting the developing countries without hampering the spacefaring nations. The principal treaty provisions that are of special interest to developing nations are discussed, and issues associated with remote sensing, communications and environmental harms are examined in detail. Since 1967 there has been a sharp change in the focus of legal concern towards ‘taking into account the particular needs of developing countries’, a principle that will be central to arrangements for the equitable sharing of the benefits of exploiting the space environment and its natural resources.     

Promoting ASEAN space cooperation

In the 21st century space activities are having an ever greater influence on global society, economics, culture and the environment; they are becoming a key tool of sustainable development. However, for many individual developing countries, including those in Southeast Asia, there actually are many obstacles to participating in the space field. Therefore in order to promote sustainable space development and to solve space conflicts within the region, all Association of Southeast Nations (ASEAN) nations should embark on greater regional space cooperation as soon as possible. Because regional space cooperation can assure equal rights to space benefits, it does not limit returns only to the first beneficiary or the first user to receive space benefits. In the end, the total space benefits will be spread to other cooperating countries equally.     

Criteria for developing and testing Transparency and Confidence-Building Measures (TCBMs) for outer space activities

Space systems play an important role in sustaining the development, prosperity and security of many nations. As more nations become critically reliant on space systems, questions of maintaining safety and strategic stability in outer space have come to the fore. Transparency and Confidence-Building Measures (TCBMs) for outer space activities have an important role to play in providing clarity about the intentions of States and in articulating norms of behaviour in outer space. TCBMs take several forms. They may be the elaboration of basic principles related to the exploration and use of outer space, political measures related to establishing norms of conduct, information-sharing activities to improve the transparency of outer space activities, operational practices which demonstrate a commitment to mutual cooperation in outer space, or consultative mechanisms. We present an analytical framework for evaluating potential TCBMs and illustrate the application of this framework to examples of potential operational, regulatory, treaty-based and declaratory TCBMs.     

European space research in support of international partnership

The envisaged future space research programmes, whether in the field of space exploration or Earth observation are becoming more and more technically complicated and so costly that a single nation can hardly afford to realize them. Major non-European space-faring nations, China and India will progressively play an important role besides US, Russia and Japan. The Space Advisory Group of the European Commission recommended that the European Commission supports within Horizon 2020 a comprehensive Robotic Mars-Exploration Programme under European leadership that should become an essential element of a coordinated international space research programme. The International Space Station (ISS) experience shows that cooperative space programmes build links between industries and laboratories from around the world, which then further develop in non-space related activities, with positive impact on the economy and scientific research. Strategies need to be developed to mitigate the gradual increasing risks incurred by climate change. In order to lower their entry barrier to engage in space emerging and developing space nations need to be included in cooperative space programmes. We present the recommendations of the Space Advisory Group of the European Commission concerning Europe's participation to global space endeavours.     

Soviet proposals on the militarization of space

The USSR has submitted several proposals to the United Nations in recent years which are aimed at avoiding the militarization of outer space. This article examines three of the proposals and evaluates them in the context of existing treaties, to see whether or not they could resolve the political and legal problems which might arise. The reactions of the United Nations General Assembly and individual nations are also considered. The author concludes that several questions regarding the military aspects of space activity are left unresolved by the Soviet proposals.     

Promoting research and education in basic space science: the approach of the UN/ESA workshops

UN-affiliated regional centres for space science and technology education are being established or are in operation in Africa (Morocco, Nigeria), Asia and the Pacific (India), Latin America and the Caribbean (Brazil, Mexico), and Western Asia (Jordan). Education curricula at the university level, embracing remote sensing, satellite communications, satellite meteorology, and space science have been developed for these centres. This article briefly reports on the structure of the most recent updated education curricula in the four disciplines that have been made available for implementation in 2002 and 2003, in the six official languages of the United Nations. This is also an effort to bridge the gap between such education curricula as they vary significantly between nations and among educational institutions in nations.     

The need for air space and outer space demarcation

This paper argues the need now to consider defining a vertical or spatial boundary between air space and outer space, which in turn effectively means defining the extent of air law and space law. Technology changes in aircraft, spacecraft, positioning systems and remote sensing, combined with the growth in the number of spacefaring nations, make the situation different from the early days of the space era when it was assumed that a boundary would be defined at a future indeterminate date. This article describes the background to the debates and the growing pressures of the questions of sovereignty concerning air and space law, and argues the case for a vertical or spatial boundary rather than a functional one.     

Challenges to US space sustainability

With space now crucial to such a wide range of activities on Earth, the USA must ensure the sustainability of its efforts, a task that involves technological feasibility and political will. Near-term challenges include US human access to space and the Shuttle transition, funding NASA sufficiently in a time of recession, and rebuilding the country's space industrial base. Longer-term challenges will be better protecting the space environment (including the electromagnetic spectrum) from overcrowding and the effects of space weather and NEOs, and defining responsibilities for distributing climate change data and recognition of property rights for the commercial development of in-space resources. As an aid to dealing with these challenges the USA must ask itself whether there is a human future in space and seek to answer the question in the course of human and robotic exploration beyond Earth.     

What do nations want from international collaboration for space exploration?

From 2006 to 2007 14 space agencies developed a Global Exploration Strategy outlining the rationales, goals, and timelines for space exploration. As more nations gain support for exploration programs and begin executing missions, the informal meetings of the Global Exploration Strategy ‘partners’ should be formalized through the establishment of a new international collaboration mechanism for space exploration. This paper outlines a set of desirable criteria a new collaboration mechanism should meet to encourage participation by the major space powers. The criteria were developed by synthesizing information from interviews with space agency representatives, government representatives, and space policy professionals from 10 of the Global Exploration Strategy countries. The criteria give an insight into the current requirements for international collaboration in space exploration.     

Implementing international co-operation in space exploration

This article discusses the outcomes of an April 2005 workshop held at ISU in Strasbourg. Experts sought to tailor an international co-ordination mechanism that would achieve the classical benefits of international co-operation for the unique venture of space exploration. The mechanism they developed provides a permanent forum for those with vested interests in exploration (currently space agencies in key spacefaring nations) to exchange information about national plans and activities so as to build confidence in one another's programs and, to the extent they choose, to develop beneficial interdependencies. The product of this co-ordination effort would be a consolidated international exploration roadmap that would both inform and reflect national program decisions. The co-ordination mechanism would simultaneously involve, but in less central roles, other important interested parties (industry, the science community, other countries without current exploration programs), whose advice is important to the development of a consolidated roadmap. Recognizing that the stakeholders in exploration will almost certainly evolve over time, the mechanism also presents the flexibility to accommodate new players (e.g. companies and countries not yet with investments in exploration) in more central roles as they become stakeholders with vested interests in exploration.     

A new paradigm for international cooperation in space exploration

In announcing a new Vision for the US space program, President George Bush committed the USA to “a long-term human and robotic program to explore the solar system”, via a return to the Moon, leading to exploration of Mars and other destinations. He also stated that other nations would be invited to join the vision. Many other nations have, or are developing, ‘exploration visions’ of their own. The potential for international cooperation therefore exists, both at the vision and program/project levels. This paper, based on Working Group discussions as part of an AIAA space cooperation workshop,¹ presents an approach for maximizing the return on all global investments in space exploration. It proposes an international coordination mechanism through which all these various national activities could be integrated into an inherently global enterprise for space exploration, a ‘virtual program of programs’. Within the context of the coordination, individual activities would utilize the full range of cooperative mechanisms for implementation. A significant benefit of this mode of conducting cooperation is that it would not require the negotiation of complex overarching international agreements as a precondition for initiating international activity.     

Between heaven and earth: The legal challenges of human space travel

Since the first space object was launched into orbit in 1957, humankind has been engaged in a constant effort to realise ever more ambitious plans for space travel. Probably the single most important element in this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space on a commercial basis. Within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy.The prospects for both suborbital and orbital private human access to space give rise to some interesting and difficult legal questions. It also opens up an exciting opportunity to develop an adequate system of legal regulation to deal with these activities. The existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity represents a major challenge and must be addressed as soon as possible, to provide for appropriate standards and further encourage (not discourage) such activities.This article will examine some of the more pressing legal issues associated with the regulation of space transportation of passengers on a commercial basis, seen in the light of Article 1 of the Outer Space Treaty of 1967, which states that the ‘exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries […] and shall be the province of all mankind’. An appropriate balance must be found between the commercial and technological opportunities that will arise and the principles upon which the development of international space law have thus far been based.     

Financing of space assets

The commercialization of space activities would increase if countries or companies could get more financial support. Space activities involve a high level of risk, however, which is why financial institutions are reluctant to advance credit. The International Institute for the Unification of Private Law (Unidroit) is interested in finding legal ways to satisfy commercial and financial needs by improving creditors’ guarantees and it has been proposing a draft Protocol on matters concerning space assets. This article aims to show why this subject has attracted the attention of both developing and developed countries. It also attempts to predict the consequences of the Protocol for space activities in developing countries.     

Competitiveness of commercial space transportation services

Competition between the providers of space transportation has become intense with the distinct possibility of governments providing both direct and indirect subsidies in order to influence transportation user choices. This bodes well for users of transportation services but has serious ramifications with regard to the future makeup of the international space transportation industry. This paper addresses the following key issues: selecting a launch service given a decision to establish a business to provide satellite communication services; establishing the price that should be bid by a launch provider in order to have a specified chance of being awarded the launch contract; and assessing the possibility that a launch provider is utilizing unfair or predatory pricing in order to increase the likelihood of winning launch contracts and thereby increasing market share. A method is developed and results presented based upon establishing ‘value in use’ pricing that explicitly takes into account the multiple attributes of alternative launch services. This leads to an assessment of ‘predatory’ pricing in terms of the value in use pricing.     

Towards an EU industrial policy for the space sector – Lessons from Galileo

The rise of the EU as an actor in the European and world space theatres, in its various roles as initiator, owner and operator of large-scale programmes such as Galileo and GMES, has raised a number of questions with regard to industrial policy. Based on the experiences from the Galileo programme's procurement round in the Full Operational Capability (FOC) phase and on the present discussions on space industrial policy within the EU, this paper argues that, whereas the EU's political ambitions in space have been discussed and become reasonably well defined, the specific policy tools and legal instruments to put them into practice are far from complete. First, an unequivocal industrial policy for the space sector needs to be defined that reconciles the Union's political ambitions with the economic specificities of the space sector. At present, this is a work in progress, with opinions diverging between member states. Second, both logically and temporally, these policy decisions need to be translated into legal instruments that allow their implementation. This implies the development of made-to-measure funding instruments and procurement rules. We conclude by emphasising the need for a sector-specific industrial policy as an integral part of the EU's space policy.     

Prospects for international space cooperation in the Pacific Basin

This article examines the possible avenues of cooperation in space activity between nations of the Pacific Basin. It looks at possible memebers of a regional space organization and their areas of common interest. The European Space Agency is suggested as a model, and some of the useful lessons that could be learned from it, as well as significant differences between the European and Pacific regions, are discussed.