- within Intellectual Property topic(s)
- with Senior Company Executives and HR
- with readers working within the Banking & Credit and Law Firm industries
A Bengaluru startup, Big Bang Pvt. Ltd., developed a Space Robot for autonomous satellite maintenance. The company patented its invention in several countries and deployed it on a multinational orbital platform. Months later, a foreign competitor reverse-engineered the design from space and began selling a near-identical model. Big Bang now needs to know how to protect and enforce its intellectual property (IP) rights for an invention operating beyond Earth's legal boundaries.
As private companies venture further into space, a critical question arises: how do we protect intellectual property (IP) in a domain often described as the 'province of all humankind'? The traditional legal frameworks of Earth are ill-equipped for this new frontier because intellectual property rights operate territorially, but space is legally terra nullius, governed by no single nation. Current legal provisions are still few and far between but are instructive to study to analyse the way forward.
Existing Approaches
A central tenet of the Outer Space Treaty, 1967 - often described as the cornerstone of space law - is that outer space, including the Moon and other celestial bodies, cannot be claimed by any nation. The treaty, however, makes an important exception for space objects and their personnel. Under Article VIII, the State that 'registers a space object' retains jurisdiction and control over that object and its crew while in outer space or on a celestial body. The obligation to maintain a registry of launched space objects is covered by Article II of the Registration Convention, 1975. The prevailing international consensus therefore recognizes that the registering State exercises 'quasi-territorial' jurisdiction, akin to the 'Law of the Flag' that operates over ships in the high seas as well as aircraft flying in international airspace. Such jurisdiction would logically extend to cover IP created or carried aboard space objects, although this aspect remains largely unexamined. To be kept in mind is the fact that these treaties were drafted with nation-states as primary parties, are not self-executing and require national legislation for implementation, and are not aligned towards resolving disputes between private individuals or corporations. Further, not all nations are signatories to these treaties, hence their applicability is not universal.
The International Space Station Intergovernmental Agreement (1998) - often referred to as the 'IGA' - was signed by 15 governments participating in the ISS program. It permits each partner nation to extend its jurisdiction into the ISS, effectively dividing the station into national zones corresponding to its pressurized modules. Notably, the ISS Treaty is the first to explicitly include intellectual property (IP) protection, with Article 21 outlining safeguards for patents, trade secrets, marking requirements, and IP rights more broadly. Jurisdiction over IP is tied to the location of the relevant activity, whether within a specific flight element or an area under a nation's operational control at the time.
This contractual model is carried over in NASA's Artemis Accords (2000). While not a formal treaty, the Accords are a political commitment by 56 signatory nations as of July 2025 (including India) to uphold guiding principles, forming a collaborative framework for future space cooperation through their incorporation in contractual mechanisms.
Frequently referenced as a model for safeguarding inventions developed aboard space objects under a nation's jurisdiction is The Patents in Space Act of 1990 (35 U.S.C. § 105) in the United States. Section105 states that "[a]ny invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States." However, the provision does not establish global rights. A truly international system would require all countries to extend their domestic IP laws to outer space, with jurisdiction and venue determined by the inventor's home country.
Enforcing IP in Space
Coming back to Big Bang, the first question to determine would be the place where infringement has taken place. If the reverse engineering has been aboard a node of the multinational orbital platform, the agreement/regulations governing the platform (akin to the IGA) should offer a solution in terms of relevant jurisdiction to sue for infringement, the pre-condition being that Big Bang has pre-existing patent rights in the said jurisdiction.
But what happens if the illegal patenting takes place aboard a space object not covered by the multinational agreement? What if that space object belongs to a country that also lies outside the UN space treaties, Artemis Accords etc.? The International Lunar Research Station (ILRS), led by Russia and China, is a planned lunar base designed for multidisciplinary research. It will support exploration, lunar-based observation, scientific experiments, technology testing, and long-term autonomous operations on the Moon or in lunar orbit. What if Big Bang's patent is illegally engineered on the Moon's surface? The reality is that there is no global treaty or agreement that provides umbrella protection of IP rights in space.
Current governance structures for space comprise fragmented national and private regulatory approaches. Not only does this create vacuums in terms of IP protection, a fragmented approach where each nation follows a policy best suited to its national self-interest reveals a much bigger issue at hand – that of the 'tragedy of the commons'.
Polycentric Governance Model
Global Commons are resources whose domains of exploitation lie largely beyond the sovereignty of any state and are accessible to all humankind, examples being the high seas, the atmosphere, Antarctica, and cyberspace. All these governed by international treaties and norms designed to ensure collective stewardship of their sustainable use. However, a parallel does not exist currently when it comes to outer space, though it is acknowledged as a global common.
The danger of frameworks being set by a few nations, in the absence of an umbrella effort of an inter-governmental body such as the UN (say under the aegis of WIPO) is likely to result in the benefits of resource exploitation concentrating in the hands of a particular country/ few countries, while the costs of depletion are distributed among all nations. This is an issue that echoes in the current global responses to climate change.
A solution may lie in developing a strong polycentric governance model. In Outer Space as a Global Commons1, the author proposes adopting a model, inspired by Nobel Laureate Elinor Ostrom's principles of commons governance, that advocates a decentralized system where various entities have a role in decision-making, leading to multi-stakeholder participation with inclusivity as a fundamental objective. At its core, the proposed polycentric governance model recognizes that no single entity can effectively police the entirety of outer space. This model harmonizes the interests of governments, private enterprise, and the global community at large by balancing competition and cooperation and ensures that outer space is protected as a shared resource for future generations, rather than being exploited only for short-term gain by individual nations.
A Working Solution
The proposed system has several benefits that are discussed in the above paper. Applying the system in the context of a legal framework, for there to be a discernible benefit in the commons, certain key components will be required to be part of the system.
- Contractual and Private Governance on Earth - This is the most immediate layer of protection. A company like Big Bang, which develops a crucial piece of technology (the Space Robot), can enforce its rights through robust contracts. These contracts, binding under terrestrial law, would include clauses for non-disclosure and non-reverse engineering. However, while effective for parties that are in privity, as outlined above, this layer does not account for infringement by third parties who are not part of the agreement(s).
- Updating National Laws – Nations should extend their IP laws to cover infringement on space objects that are registered to individuals/entities who are citizens of/registered with the particular nation. In the case of India, reportedly, a new draft of the Space Activities Bill is likely to be circulated shortly that will include clauses on IP ownership and commercialization.
- Multilateral Agreements and common norms - In case of cross-border litigation, such as one that would arise in the Big Bang example, the situation is more complicated. Big Bang ought to be able to file an action in the country where the competitor who has misappropriated its Space Robot technology is registered. However, at the international level, such a system is not recognised as yet and this is an area which needs to be developed and consensus built to ensure a consistent and enforceable legal standard.
- Dispute Resolution Mechanism – Needless to say, building consensus for an international framework would take time. In the meantime, it may be worthwhile to contemplate a specialised arbitration body for space related IP disputes that are beyond the reach of terrestrial courts. The Permanent Court of Arbitration currently has Optional Rules for Arbitration of Disputes Relating to Outer Space Activities2. Without commenting on the merits of these Rules, there is scope to formalize and adopt a specific set of rules for outer space activities, which can be followed by the specialized arbitration body so as to provide a neutral and expert forum to adjudicate IP conflicts, ensuring timely and specialized decisions. Guidance may be had from the terms of the International Law Association's 1998 Final Draft of the Revised Convention on the Settlement of Disputes Related to Outer Space Activities which are applicable to states, private companies, and individuals, offering three binding resolution options - an International Tribunal for Space Law, the ICJ, or arbitration (the default if parties disagree). A good example of a working arbitration system with no physical presence is the current WIPO UDRP for cross-jurisdictional domain names disputes.
- Global Space IP Registry – A White Paper prepared by the International Trademark Association (INTA)3 details various solutions for consideration. One approach, which might prove useful in the near term, might be to create an informational database that would give notice of asserted rights in space. This path was suggested years ago to deal with the difficult issues surrounding asserting geographical indication (GI) rights under the WTO TRIPS Agreement (the so-called WTO Joint Proposal in 2005). Countries would create a database advising everyone else which IP they protected - the legal effect of such a database and the enforcement mechanisms for protecting these asserted rights would need to be determined at a later date.
In the long term, the development of a dedicated treaty on IP in outer space could clearly define the scope of protection and establish enforcement mechanisms, whether through specialized courts or arbitration panels. Such a framework, ideally administered by WIPO, would work best as a single, harmonized system for registering and enforcing rights in space. To safeguard consistency with existing international standards, the core principles of the Paris Convention, Berne Convention, and TRIPS Agreement should be expressly extended to cover IP created for or utilized in outer space.
The Path Forward
The goal of treating outer space as a global commons is to foster an environment of shared stewardship. Although the tension between commercial protection and the commons framework is real, a polycentric governance model can address challenges by promoting inclusion, transparency, and shared governance by all stakeholders. The element of urgency must be underscored for the Big Bang example mentioned at the start is unlikely to remain hypothetical for long.
As suggested by the INTA White Paper, developing a compendium of best practices shared among nations could serve as an initial step, gradually building broader acceptance and paving the way for eventual consensus on a formal treaty. This way we can ensure that the next era of space activity is one of both unparalleled innovation and equitable access for all.
Footnotes
1. Soni, A. (2025). Outer Space as a Global Commons: Competition, Contestation, and Regulation. International Journal of Social Science Research and Review, 8(7), 485–498.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
