Introduction
Deep into the solar system, NASA’s Perseverance Rover scours the red landscape of Mars collecting rock samples and sending back data across to Earth. Perseverance is not the only man-made contraption in space that sends data to the scientists back home for analysis and studies. Satellites used for telecommunications, broadcasting, and Geographical Information Systems are a few among many satellites that receive and emit data of various kinds. While looking up at the night sky and pondering about the vast cosmos does sound like a philosophical activity, the truth remains that in the 21st century, space is seen as a commercial jackpot whose exploitation has begun by not just nations but also private space companies. This makes space law relevant in this century, and the application of intellectual property to various aspects of space activities is important. This article explores the application of Copyright Laws to the data transmitted to Earth from various satellites or space rovers. International Space Treaties lack a clear, unequivocal definition of Outer Space. The Fédération Aéronautique Internationale “a non-governmental and non-profit international organisation with the basic aim of furthering aeronautical and astronautical activities worldwide” considers Outer Space to begin 100 kilometres above sea level, above the Kármán Line which is an imaginary line that differentiates Earth’s atmosphere and outer space. The International Community generally expects this by way of custom. The Kármán Line differentiates an aircraft and a spacecraft based on the altitude at which the vehicle is cruising. With the definition of Outer Space set, the next question is whether copyright laws can be applied to what happens or originates in Outer Space.
Extra-Terrestrial Application of Copyright Laws?
Article VIII of the Outer Space Treaty, 1967, states that any State Party to the Outer Space Treaty retains jurisdiction over the satellite or vehicle that is launched into space by it. In the case of private companies launching satellites or vehicles, the state wherein the satellite or vehicle has been registered can exercise jurisdiction over it. The Outer Space Treaty does not explicitly talk about private entities but does deal with State jurisdiction over vehicles that are registered within it. By applying Article VIII of the Treaty, a country’s copyright laws and intellectual property laws can be applied to satellites or vehicles either launched by the State or registered in the State. If the launching state has signed International Treaties and Conventions on copyright or intellectual property laws, even those laws would be applicable in such scenarios.
The above-mentioned Article would cover not just space vehicles just outside the Earth’s atmosphere or on the moon, but for the time being covers satellites, rovers, etc. on other planets, comets, asteroids or any Body that can constitute “Outer Space” or that falls within human beings’ perception of Outer Space. Unless we colonise Mars, create a separate colony and legal system there!
Satellites and Data: An Application of Copyright: Every time NASA or ISRO publish a picture captured by one of its satellites on any of their social media handles, would that imply that the organisation has full copyright over the image? Well, yes. But do the organisations have exclusive rights over the image? Article I of the Outer Space Treaty states that the exploration and use of outer space would be done for the benefit of all countries and all mankind, based on the principles of equality and international law andArticle II states that Outer Space cannot be subject to State sovereignty or national appropriation by any means. Article I expounds on the principle that Outer Space is “res communis” or public property. Belonging to all of mankind. So, can data generated from outer space also be considered res communis? Thus, by the extension of these Articles can it be considered that as long as for the benefit of mankind and other countries, such images or even data emitted by satellites cannot have exclusive copyright? This depends on the policies of organisations that launch the satellites. For instance, NASA allows the usage of images for non-commercial and non-promotional publications. Clearance is needed in the case of images wherein NASA logos are seen and used for promotional purposes. This comes well within the fair use doctrine. ISRO on the other hand allows the reproduction of the images published on its website as long as it is not derogatory, not belonging to a third party and with explicit mention of the source.
The Legal Aspect
Apart from State copyright laws, International Copyright laws are applicable as long as the launching state or the state in which the vehicle has been registered is a State Party to such International laws. Article 2 of the Berne Convention, 1886, defines what works can be copyrighted. It includes every production in the scientific domain whatever may be the form of expression. This definition can be construed to include images or photographs (explicitly mentioned in the definition) and data (impliedly). This definition can be interpreted to cover data emitted by satellites, rovers or space vehicles. As per Article 5 of the Convention, any work gets copyright protection as soon as it gets materialised in tangible form. The WIPO Copyright Treaty, of 1996, imparts a more explicit and specific definition of what can be copyrighted. Article 2 of the Treaty states that expressions, not ideas, procedures or mathematical operations, can be copyrighted. Computer programs are considered literary works and are protected under Article 4 of the Treaty. Further compilation or intellectual arrangement of data is protected and not the data or material in itself as per Article 5 of the Treaty. According to this, data collected and transmitted by satellites in itself are not protected by copyright but if such data is arranged in a manner that showcases intellectual effort, it can be protected.
Originality and a modicum level of creativity is required for a work to avail copyright protection. It again depends on the jurisdiction of States and domestic laws about these parameters and how works are measured against these criteria to grant copyright protection. A satellite’s capturing of an image or collection of data will undoubtedly be original, but creativity is added most often by the organisations after the image or data is received. For instance, NASA usually receives a black-and-white image of things in space as there is no visible light range in space. It is coloured through various processes based on the wavelength the satellite captures to get vivid colouration of a grayscale picture. Concerning the data, NASA again analyses, classifies and arranges the data collected by the satellite into particular forms and thus, adds the creativity and labour factor needed for copyright protection. This brings us to the discussion about who exactly would be the author of the work then. The satellite or the organisation?
In the above example, since NASA assembles the satellite, launches the satellite, programs the satellite, inputs commands to the satellite to take a picture or collect data and colours the images or arranges the data collected, NASA or the concerned space organisation would hold the authorship and hence the copyright rights. But thanks to the technological revolution, a satellite may require minimum support or commands from the organisation, having a life and a mechanical brain of itself. Again, this debate is close to the debate surrounding granting legal personhood to Artificial Intelligence (AI). Since neither AI nor any Advanced Machines have legal personhood, satellites or space vehicles cannot be considered authors on their merit.
The cosmos carries within itself life and other magical things. Humans are undoubtedly a part of this beautiful cosmos and so is each one of every human’s creation. Laws created by humans are a part of this vast universe. It applies to an infinitesimally small part of space which includes the Earth. However, the human intellect that has taken man to space is protected outside the bounds of Earth and on a higher level. Nevertheless, it stands true that the intellectual property protection for outer space activities is construed from traditional treaties that were drafted during the Cold War Era and requires a huge revamp to ensure the 21st Century Commercialisation of space does not leave Intellectual Property Rights infringed.
Authored by: Chinmayee Hegde
Blogger, The IP Press
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