Protecting Intellectual Property In Space: Challenges Of Article 2 & 8 Of The Outer Space Treaty

Abstract

World War II ended in 1945; nations gained independence and began competing to become the world’s most powerful nation. Developed countries aspire to be dominant leaders, and to assert their superiority, they have adopted space exploration as a key tool for achieving this dominance. Currently, only a few countries are leading in space exploration, utilizing their space agencies, satellites, rockets, and launch facilities. These nations are in competition with each other while making space exploration more prominent.

Similarly, private entities are also taking part in space exploration for their own benefits and incentives, which contributes to the global growth of commercialization of space activities. This commercialization is needed for the global development and discovery of resources, which are essential for humanity.

To promote further growth and further development, the protection of IP rights in space has become more significant. This paper majorly discusses about the need for IP rights protection in outer space and challenges it faces under Article II and Article VIII of the Outer Space Treaty, 1967.

Article II: Non-Appropriation Principle

• Article II laid down the principle of non-appropriation of outer space.
• This raises the issue with the territorial nature of IP rights.

Article VIII: Division of Rights Over Space Objects

• Article VIII divides the rights over a space object into two:

Type of Right	Ownership	Implication
Registry Rights	State	Control and jurisdiction over the space object
Ownership Rights	Manufacturer / Inventor	Private ownership and intellectual property claims

Former belongs to the state and the latter to the manufacturer and inventor, which leads to legal ambiguities regarding the application of rights, enforcement, and potential conflicts between state control and private ownership of intellectual property rights.

This paper highlights the unresolved challenges IP rights face with the current legal frameworks and limitations of Article II and Article VIII. Further, the paper seeks possible solutions for the existing problem and draws inferences from various nations to address this issue. The paper highlighted the need for a unanimous international framework that comprehensively addresses the issue of the protection of intellectual property rights in outer space.

Introduction

As the world is taking a new shape with the technological advancement, so as the realm of space. Over the time, space exploration has become a very important factor in determining a country’s global standing.

In that competitive race, every country aims to lead, which increased the commercial activities in the space as well. Previously, government entities were the primary players in the space activities, which plays an important part in space exploration, but now private entities are also eager to become a part of it.

With the increasing development in technology, ways to explore outer space is also expanding. Data shows that space exploration is now a major driver of the commercial space economy, which was valued at $613 billion in 2024, with about 80% coming from commercial activities.

Role Of IP In Space Economy

• Innovation is central to this growth.
• Intellectual property rights play a major role in protecting these advances and fuelling further investment.[1]
• Patents and other IP rights are fundamental to:
  • Satellite technologies
  • Launch vehicles
  • Propulsion systems
  • Communications
  • In-orbit manufacturing

Although there is no comprehensive public data available on the exact contribution of IP to space commercialization, but studies and expert opinions agree that the space economy is heavily driven by innovation, with patents and other IP rights being fundamental to the value of satellite technologies, launch vehicles, propulsion systems, communications, and in-orbit manufacturing, which make IP a significant contributor to the space commercialization and exploration.

Currently, Outer Space Treaty, 1967, provides rules and regulations regarding the governance of the outer space, moon and other celestial bodies, which was the first widely accepted and most successful of its kind.

What Are The IP Rights

Intellectual Property rights (IPR) are legal rights which are provided to the creators for their original works, allowing them to control the use of their work for a specific period.

In other words, these are the rights which are given to a person for creation of their own mind, or intellect, refers to inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Which are the central to the new world of innovation and economic development.

Why IP Rights Are Important In The Space Activity

In today’s world, Intellectual Property can be seen as one of the most valuable assets of a country, which extend this concept into space as well, is presents with so many challenges. In space, where concept of sovereignty is absent, and an innovation is created, then how do we deal with ownership of such creation in such environment where no boundary exits?[2]

This issue continues to be there when two or more countries are working in collaboration for some space activity or space exploration. The question arises as who holds the IP rights for innovations developed through multinational efforts.

The International Space Station (ISS) And IP Rights

The International Space Station (ISS) is an environment where the interaction of various laws of individual countries can be studies. Every nation has control over their module in the ISS, so any invention that is created inside that module will be governed by laws of that country.

• Each country governs its own module on the ISS
• Inventions are subject to the national laws of that module
• Jurisdiction depends on where the invention is created

However, in a case where two or more astronauts of different counties are on the ISS, they come together and invent something that which needs to be patented in such scenario the division of ownership of such invention needs to be addressed.[3]

Real-World Example Of IP Challenges In Space

For example, Bristol Myers Squibb conducted an experiment on the ISS to find out how monoclonal antibodies crystallize in microgravity, or extremely low gravity. Where more than one state is involved in this research.

Aspect	Details
Company	Bristol Myers Squibb
Location	International Space Station (ISS)
Research Focus	Monoclonal Antibodies Crystallization
Key Challenge	Where to file patent protection

The main question arises with this research that where the company file patent protection for experiments should made in space[4].

Need For Legal Framework In Space IP

The above scenario highlights the need for establishment of a legal framework that ensures a fair and competitive environment in outer space which shall effectively protects IP rights there.

• Encourages private sector participation
• Boosts innovation and research
• Enhances international cooperation

Such frameworks would encourage private sector participation in space activities and positively impact space research and international cooperation.[5]

Securing intellectual property rights is very important to extend space exploration for commercial purposes. Without a proper IPR framework any invention or discovery resulting from research conducted in space and on terrestrial bodies such as the moon, private investment would be difficult to put in play.[6]

Article 2 And Article 8 Of Outer Space Treaty, 1967, And Their Limitations

At present, there are no exclusive legal frameworks safeguarding Intellectual Property rights in outer space, while numerous international frameworks exist to protect IP rights globally, but these rights are inherently territorial, and these international frameworks only applicable within such territory.

The Karman Line, which is 100km above the earth, which separates Outer Space from Earth. The Outer Space treaty, known as one of the oldest and most successful of its kind, binds countries to its universally accepted rules and regulations.

Article II Of Outer Space Treaty, 1967

“Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”[7]

This article prohibits any nation from claiming ownership or sovereignty over outer space or any celestial body by any means, such as formal claim, physical occupation, or other means, with aim to ensure that outer space remains free and accessible for peaceful exploration and use by all countries, preserving it as the “province of all mankind.”

• No nation can claim sovereignty over outer space
• No ownership through use or occupation
• Ensures equal access for all countries

In other words, Article II forbids any nation to claim sovereignty in the space and declare any of its part or object as their property. Hence, this article emphasise that Space is an international space where no state and its law can govern or claim ownership.[8]

Limitations

According to Article II, since space is international space, no nation can claim it, which implies that no law can be applied there.[9] However, Article 5ter of the Paris convention introduce a doctrine of temporal presence in outer space, which allows national IPR laws to be applied in outer space.[10] where the primary concern is to determine which nations law shall be applicable[11], which leads to ambiguity and shows the lack of consensus within the existing framework.[12]

Jurisdictional Challenges In Outer Space

The essence of Article II of OST lies in the jurisdictional matters, which makes the Government entities as the primary beneficiary in space exploration or utilization of space objects. The exiting IPR framework addresses territorial issues and nations’ sovereignty but doesn’t extend to Outer Space and other celestial bodies, where it lacks jurisdiction. Currently, with private entities playing a huge role in the commercial space activities in space and fostering innovations and discoveries through technology, there is a need to safeguard their interests and incentives to promote further discoveries and global growth. Therefore, broad application of current guidelines is inadequate in providing safeguards to the IP rights of the private entities, as it does not establish territory and jurisdiction.

National Legislations And IPR Limitations

• The United Kingdom has an interesting statute known as the “Outer Space Act” (1986) which, among other things, authorized the Outer Space (Jurisdiction) Order (1987), extending UK criminal law to UK space objects. Although this statute does not specifically address IP rights, it could be extended to Criminal IP violations, such as counterfeiting[13]. The extension of Criminal laws in outer space suggests that some similar approach shall be adopted for the protection of IP rights as well.
• Australia enacted the space activities Act in 1998, which govern the space activities that are carried on or launched from Australia and binds Australian nationals who may engage in outer space activities from another launching states as well. Although the act doesn’t have any formal legal stance on the IP laws, it encourages intellectual agencies to have their own conditions and principles for contractual arrangements of joint outer space activities.[14]
• In 1990, USA codified its legislation specifically addressing to IP, which states “any 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” subject to international agreements and foreign Launching State claims.[15]

Comparison With Maritime Law

If we discuss at the laws of the high seas, The United Nations Convention on the Law of the Sea (“UNCLOS”) outlines the territorial framework for maritime seas as internal and territorial water.[16] Which is similar Outer Space Treaty, as it states that “the high seas are open to all States, whether coastal or landlocked. Freedom of the high seas is exercised under this Convention, and “the high seas shall be reserved for peaceful purposes[17].

Aspect	Maritime Law (UNCLOS)	Outer Space Framework
Ownership	High seas are open to all states	Outer space cannot be claimed by any nation
Jurisdiction	Ship governed by country of registration	Jurisdiction unclear and ambiguous
Regulation	Defined under UNCLOS	Limited and fragmented framework

As per the maritime law, a ship is subjected to the laws of the country where it is registered. UNCLOS is similar to the Registration Convention, as it states that all ships sailing in international waters must be registered with a country or a flag state.” It is distinct that to Registration Convention where it requires to registering the ships in a country where the person resides. This raises a concern that ships may register for flag of convenience, which can lead to forum shopping[18].

• The term “flag of convenience” describe to the practice of registration of a ship in a different country than in which its owner resides, for the purpose of minimise its operating costs and avoid further stringent regulations.[19]
• This loophole allows private organizations to register their ship in another country to minimise the cost and maximise their profits, thereby exploiting the exiting framework[20].

Conflict Between Global Commons And IP Rights

Further Article II and the IP rights are in contrast, as this article addresses global commons, while the IP rights are the exclusive rights of the individual. Granting exclusive rights in space could be interpreted as a form of appropriation of space or any part of the space, which will go against the principle of benefitting all humanity. This raises the issue of balancing global commons with the interest of private entities[21].

TRIPS Agreement And Outer Space

TRIPS Agreement, states that patent rights shall be available and enjoyed without discrimination of location or place of innovation. This principle can be extended to the outer space, as patents are be granted and enforced in any other territory. However, Article II specifically prohibits the appropriation of outer space, celestial bodies, and the moon, which cannot be classified as territories, which leads to non-applicability of TRIPS provisions in outer space[22].

Article Viii Of Outer Space Treaty, 1967

Article VIII of Outer Space Treaty, 1967 states that:

“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.”[23]

Significance Of Article Viii In Ip Rights

This Article is significant to discuss where the matter pertains to IP rights in outer space. The interpretation of Article VIII suggests that it has failed to clearly define the term “space object”. It is commonly understood as every object which has been launched into outer space for exploration or utilization, as well as every object that is planned for a future launch.[24]

Classification Of Space Objects

Generally this can be classified in three ways:

• Object launched into Space
• Object landed or constructed on celestial bodies
• The component part of such objects

[25]

Registration And Launching State

The interpretation of Article VIII further explained that there is no difference between space objects launched by a states or private entities, both must be registered under appropriate National Registry, which shall be incompliance with the Convention on Registration of Objects Launched into Outer Space.

Additionally, the term “state of registry” refers to a launching state on whose registry the space object is carried. The conditions for being a launching state can be identified with the following criteria:

• Launches
• Procures the launching of state object
• Whose territory
• Facility a space object is launched

[26]

It is irrelevant whether the object has been launched by a government or non-government entity, in both the cases the qualifications of a launching state shall depend on the state that is responsible for those activities.

Jurisdiction And Control

The term “Jurisdiction and Control” implies that the national laws of the state registry apply to the space object and to any personal launched into outer space. This has allowed the wider implications of national laws in outer space, including civil, criminal and the IP laws.

Registry Rights Vs Ownership Rights

Furthermore, the article divided the rights of space objects launched from a state into two categories, which are registry rights and the ownership rights.

Type Of Rights	Description
Registry Rights	Refer to jurisdiction and control of state authority. The registry rights shall be held by the State.
Ownership Rights	Not restricted to the states but also provided with the person who have manufactured or invented such object.

Types Of Ownership In Space

Ownership of a space Object in outer space can be comprises of:

• Ownership established on the ground according to relevant legal regime on Earth
• Ownership established in outer space
• Ownership transferred in outer space

[27]

Any establishment or amendments of the ownership rights in the outer space shall be determined by the state which has the right of jurisdiction and control over such object.

Limitation

Article VIII addresses the jurisdiction and ownership of objects launched into outer space [28], which states that the state from whose registry an object is launched into outer space shall retain jurisdiction and control over that object. Ownership rights are distinct from the registry rights.

These rights are not only rests with the registry of the state but might also belong to different entities, including commercial entities as well [29]. This bifurcation can result in conflicts between the registry state and ownership entities, where the later may not be able to potentially utilize their Intellectual Property Rights (IPR) due to limited jurisdiction and control over their object. The conflict may arise when the person who has invented such an object wishes to use it but fails to use due to the division of the rights.

Key Issues in Jurisdiction and Ownership

• Separation between registry rights and ownership rights
• Limited control of private entities over space objects
• Potential restriction on utilization of Intellectual Property Rights (IPR)
• Conflict between inventors and state jurisdiction

Example: SpaceX and Falcon Technology

For example, SpaceX, an American private space company, has developed innovative reuseable rockets technology, where its Falcon rockets became the first to recover and reuse the first-stage rocket booster, which is equipped with various technologies. Which are held under patent protection by SpaceX. In such cases, the patent protection, physical possession, and operational rights are granted to the private entities, but the registry rights, such as jurisdiction, control and legal authority are with the registered state only. In this scenario, if SpaceX hypothetically wants to use its Falcon 9 to carry the payload in outer space, they themselves cannot do so without the permission of the state, which is restrictive in nature and might be harming further innovations and growth of the nation. Why would any private space entity pursue this if it cannot use for its own incentive purposes [30]?

Ownership Transfer and Legal Complexities

Further, when discussing the ownership of a space object, it can be transferred while it is in orbit, but this does not mean that legal authority and control over that object are also transferred to a different country than the one that originally registered it. This creates a vulnerable situation for third parties because the legal position of space object remains with the registered state. [31] It has been observed that transfer of ownership of a space object to a third state without transferring the jurisdiction and control from the original registry state may hinder further commercialisation of space objects [32].

Summary of Legal Challenges

Issue	Impact
Division between ownership and registry rights	Limits operational freedom of private entities
State retains jurisdiction	Private innovators depend on state approval
Transfer without jurisdiction shift	Creates legal uncertainty for third parties
Inconsistent global frameworks	Leads to ambiguity in IP enforcement

Conclusion

Intellectual Property is important in every field, it is not restricted or confined to any specific field or sector, but it covers biotechnology, agricultural sector and the space as well. Nowadays, the concern to safeguard Intellectual Property in space exploration became the need of the hour. There can be an argument that domestic intellectual property laws as they stand today are harmonized. However, it cannot be overlooked that various states apply, interpret and adapt the internationally agreed principles as per their own needs and interests, which shows the lack of unanimity in applying international frameworks and leads to ambiguities.

Over the years, we are witnessing the rise in space activities and its commercialization. Although, the problem to protecting IP rights in space is not immediate but will arise in near future due to increasing numbers of private entities in the outer space activities. There should be internationally accepted Frameworks addressing the issue of IP rights protection in outer space. A comprehensive law which explicitly addresses this issue is necessary because the exiting frameworks do not adequately cover it.

Protection of IP is needed in outer space despite the challenges because it is crucial for discovering new beneficial outcomes which are necessary for human evolution. The last international agreement on outer space was the Space Station Agreement in 1998, which indicates that the space law needs to be updated. The need for a uniform or unitary international legal framework may become more necessary for outer space activities when conducted beyond the territorial limits of a state.

End-Notes:

1. International Trademark Association (INTA) IP in Space Project Team, IP in Space (INTA 2022) https://www.inta.org/wp-content/uploads/public-files/perspectives/industry-research/221207_ipinspace_report.pdf accessed 19 August 2025.
2. Pranjali Paliwal, ‘Navigating the Final Frontier: Intellectual Property Rights in Space’ (IP & Legal Filings, 2023) https://www.ipandlegalfilings.com/navigating-the-final-frontier-intellectual-property-rights-in-space/ accessed 19 August 2025.
3. Ibid, 3
4. INTA IP in Space Project Team, IP in Space (International Trademark Association, December 2022) https://www.inta.org/wp-content/uploads/public-files/perspectives/industry-research/221207_ipinspace_report.pdf accessed 19 August 2025.
5. Paliwal, supra, 3
6. Danish Husain, ‘Intellectual Property Rights: Context in Outer Space’ (IIPRD) https://www.iiprd.com/intellectual-property-in-space-rights-in-outer-space/ accessed 19 August 2025.
7. United Nations Office for Outer Space Affairs, ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty)’ (UNOOSA) https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html accessed 19 August 2025.
8. Abigail L Pershing, ‘Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today’ (2019) 44 Yale Journal of International Law 149, 151
9. William C Pannell, ‘Pirate Battles in Outer Space: Preventing Patent Infringement on the 8th Sea’ (2016) 46 University of Memphis Law Review 733, 747-48
10. Koushik Saikia and Pritam Deb, ‘Intellectual Properties Derived in Space Exploration: Issues and Scopes’ (2024) 29 Journal of Intellectual Property Rights 127
11. Alexandra M Davidson, ‘To Explore Outer Space: The Intellectual Property Frontier for Patents’ (2019) 47 Hofstra Law Review 889
12. Zhijie Chen, ‘The Application of Existing Intellectual Property Legal Regime to Space Activities: An Examination of the Self-Contained Mechanism in the Outer Space Treaty’ (2020) 50 Hong Kong LJ 195.
13. Clark W. Lackert & Caleb Dorris, ‘Protecting Intellectual Property in Outer Space: Challenges and Solutions’ (2023) 47 J Space L 550.
14. Ibid, 14.
15. Ibid, 14.
16. United Nations Convention on the Law of the Sea, 10 December 1982, 13 UST 2312, 1833 UNTS 3 [hereinafter UNCLOS]
17. Davidson, Supra, 12.
18. William C Pannell, ‘Pirate Battles in Outer Space: Preventing Patent Infringement on the 8th Sea’ (2016) 46 University of Memphis Law Review 733, 747-48
19. Matthew J Kleiman, ‘Patent rights and flags of convenience in outer space’ (The Space Review, 4 September 2017) https://www.thespacereview.com/archive/1772-1.html accessed 26 August 2025.
20. UNCLOS, Supra, 17
21. Diksha, ‘IPR and the Outer Space – Issues and Challenges’ (2023) 4 Jus Corpus LJ 10
22. Rajat Chawda, ‘Need for Intellectual Property Rights in Outer Space’ (iPleaders, 10 November 2022) https://blog.ipleaders.in/need-intellectual-property-rights-outer-space/ accessed 27 August 2025.
23. UNOOSA, supra, 8
24. Chen, Supra, 13.
25. Ibid, 25
26. Ibid, 25.
27. Ibid, 25.
28. https://jindalforinteconlaws.in/2024/12/31/outer-space-treatys-gap-article-8-and-ipr-violations-threaten-private-public-space-cooperation/
29. Chen, Supra, 13
30. Abeer Sharma, ‘Outer Space Treaty’s Gap: Article 8 and IPR Violations Threaten Private-Public Space Cooperation’ (Jindal for International Economic Laws, 31 December 2024) https://jindalforinteconlaws.in/2024/12/31/outer-space-treatys-gap-article-8-and-ipr-violations-threaten-private-public-space-cooperation/ accessed 27 August 2025
31. Chen, Supra, 13.
32. Armel Kerrest, ‘Legal Aspects of Transfer of Ownership and Control of a Space Object’ (IISL – ECSL Symposium, COPUOS Legal Subcommittee, 2012) https://www.unoosa.org/pdf/pres/lsc2012/symp-01E.pdf accessed 27 August 2025