Comment: Intellectual Property in Outer Space: International Law, National Jurisdiction, and Exclusive Rights in Geospatial Data

Abstract:     
In commenting on Julie Cromer's article, How on Earth Terrestrial Laws Can Protect Geospatial Data, 32 J. Space L. 253 (2006), this article argues that the international law of outer space, although it emphasizes the res communis, does not conflict with the assertion of private rights in intellectual property developed from or related to outer space activity. The article also addresses Cromer's concern that a conflict is brewing between the EU Database Directive and U.S. copyright law with respect to the legal status of outer space-derived data.

Without arguing for the application of any particular substantive rights in space-related intangibles, the article analyzes the current status of copyright and database rights under the international law of outer space and the choice-of-law principles that may be used to support enforcement of the various substantive rights deemed desirable by individual nations. It concludes that national laws implementing the Database Directive, even without an express territorial limitation within those laws, should not be applied to reach extraterritorial conduct, at least when that conduct occurs within another nation's territory. If unauthorized use of geospatial data or other intellectual property occurs in outer space, however, there appears to be a limited void within the standard choice-of-law doctrine of intellectual property, which relies on a presumption of territorial prescriptive jurisdiction. Therefore, regardless of the substance of the relevant national laws, whether related to data, copyright, or patent, there is a risk of incoherency in the application of intellectual property rights to outer space activity if no steps are taken to further mold jurisdictional law related to outer space.

Number of Pages in PDF File: 41

Keywords: Database Directive, Jurisdiction, Copyright, Data, Extraterritorial, International

Accepted Paper Series