1.0 INTRODUCTION

In the recent times, Intellectual Property Rights (IPR) have turned out to be a topic of immense commercial interest and controversy as the rate and cost of technological development processes have increased and national borders have shrunk in the realm of international trade. With the rapid technological growth and contemporary geo-political developments, the objectives of the laws governing IPR have taken firm roots in the arena of trade and commerce. What was sought to be a tool of protection for the inventors and benefit to the public at large, has now shifted to be  'Investment Protection Rights'. WTO/TRIPS regime has further seen IPR emerge as a tool for negotiation and expansion of trade interests for commercial exploitation.

Space, which is a common heritage of mankind where the concept of national sovereignty is benign, has become a potential playground for technological applications for services deriving profit, thus attracting many a global players. The significance of IPR in the context of the activities in space throws open many vistas of technical competence and business-oriented investments by super powers. The issues relating to the ownership of inventions made in space as individual nation or under a joint programme on a common platform is still a subject of debate in international forum. The ownership and utilization of the benefits of inventions and sharing of revenues from the same are subject matter of the Inter Governmental Agreement  (IGA) evolved for the establishment of the International Space Station (ISS), the largest joint venture effort in outer space.  In India, the continued efforts to become a recognizable space power, give rise to a need to study carefully these legal aspects with due regard to the long-term prospects of space activities.

2.0 HISTORY OF IPR

Though the term IPR, per se, encompassing a wide range of rights over the products of mind, seems to be coined recently, the root of such property rights in some form or other started way back in the 15th Century. The first patent right was granted in 1443 in Venice and the first patent laws were formulated in 1474 in Italy. 

The invention of wheel followed by the industrial revolutions between the period 1700 to 1900 witnessed many significant developments in the areas of steam, textiles, electricity and chemicals where many inventions were patented: Water frame (1764), power loom (1785), telephone (1876), diesel engine (1892), wireless communication (1899) are few to name. It is during this period (1873) that the Vienna World Exhibition organised by the Austrian Government gave a fillip to the inventors to get protection for their creations exhibited. This set in motion a process that culminated in the adoption of the Paris Convention, a major treaty for the protection of industrial property.  During the same period other treaties viz., Berne Convention for literary and artistic works (1886-96), Madrid Agreement for Geographical appellation (1891) etc., were also adopted. The World Wars I and  II further necessitated aggressive attempts on application oriented inventions when the protection rights deviated from its basic objective of benefiting the society at large and took a new dimension of technology protection/ denial by the technologically developed countries. 

(In India the patent act was first introduced in 1856 in the lines of British Patent Law,1852 and subsequently revised/ modified in 1859, 1872, 1883, 1888, 1911 and  1947 with different titles and scopes. The present patent law – Indian Patent Act, 1970 came into force from April, 1972 and was last amended in 1999 and a few more amendments to cope with the TRIPS stipulations are under the consideration of Joint Parliamentary Committee). 

3.0 TRANSFORMATION OF THE SPIRIT OF IPR

The spirit of IPR as spelt out in the constitution of the American Federation while establishing an independent patent system in 1787, stipulated that “… in order to promote progress of useful technology and sciences … the parliament… shall grant limited exclusive rights for a certain period of time .. to inventors”. Similarly, the Copyright Act enacted by US in 1909 under the status of a developing country proclaimed that ‘ such rights are granted primarily for the benefit of great body of people rather than the benefit of the author only’. 

The sprit of IPR thus originally devised to protect the interests of the inventor to promote the creativity and to serve the society at large has taken new dimensions in due course, in the realm of globalization of trade, geo-political realities, alignments and compulsions. The property rights gained focused attention as they became instruments in multilateral trade related negotiations and their scope thus extended beyond R and D interests. 
Soon after the Second World War, as the super powers emerged, about 50 countries put a joint effort to create an institution to handle the international economic co-operation viz., International Trade Organisation (ITO), in the lines of other international bodies like The World Bank and The International Monetary Fund etc.  While the draft charter of the ITO was under negotiation, a combined package of trade rules and tariff concessions known as the General Agreement on Tariffs and Trade (GATT) was provisionally ushered in with effect from January, 1948. However the dream of formation of the ITO did not become a reality. Thus, the GATT, though set up as a provisional arrangement, remained and continued to be the only multilateral instrument governing the international trade until the formation of World Trade Organisation (WTO) in 1995 [1]. 

The extension of GATT which led to the formation of the WTO also encompassed other areas viz., General Agreement on Trade in Services (GATS) and Trade Related aspects of Intellectual Property Rights, (TRIPS), besides its basic function of tariff and trade, by concluding a number of agreements amongst its members. At this juncture, the IPR took another dimension in association with Trade. 

4.0 TRIPS AGREEMENT – OBJECTIVES AND PRINCIPLES 

The objectives of TRIPS Agreement through Article-7 read as -  ‘The protection and enforcement of IPR should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations’ [2]. 

The principles of TRIPS agreement vide Article-8, stressed that the members should, while formulating or amending their IP laws, adopt measures necessary to - protect public health and nutrition, promote public interest in sectors of vital importance to their socio-economic and technological development. 

It further emphasized that appropriate measures consistent with the provisions of the agreement may be taken to – prevent the misuse of IPR by the right holders, resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. 

5.0 IMPLICATIONS OF COMMERCIALIZATION OF IPR 

The TRIPS agreement contain provisions - to maintain certain minimum standards, to authorize compulsory licenses by the states in the cases of national emergency and public non-commercial uses [Art 31 (a)(b)],  to exclude certain inventions from patentability [Art 27(2)] in order to protect human, animal or plant life, public order etc and to impose conditions to control anti-competitive practices in contractual licences. Despite these provisions many members believe that in reality, IPRs are manipulated to favour developed countries with a riddle against the interests of developing and the least developed countries.

Under the fold of trade and commerce, the relevance of IPR gained momentum and the exploitation of IPR went to the advantage of the investors rather than the inventors and the companies / nations to which they were affiliated. Many a IPR owners do not respect humanitarian considerations in the third world, as it is experienced in the case of patents relating to certain life saving formulations like HIV/AIDS drugs. When certain aggrieved countries like Brazil and South Africa passed legislations, as per the provisions of TRIPS [Art 27(2)], to prevent the abuse of the rights on such life saving drugs in their countries by excluding these from patentability, the pharmaceutical giants fought against such measures by raising legal issues and resorting to court settlement.  Even the attempts of few companies of third world origin which came forward to offer the cocktail drugs for HIV/AIDS, derived from the generic formulations at a much cheaper rate (of about US$ 400 as against the rate of US$10000 offered by the giants), were threatened by the right owners on legal grounds. Certain voluntary organizations like 'Medecins Sans Frontieres (Doctors Without Borders)' vehemently oppose such legal challenges posed by the pharmaceutical companies in the guise of IPR and TRIPS compliance. It is now reported that pharmaceutical MNCs have withdrawn the case, may be due to international public pressure. It is felt and now being argued that international stipulations in IPR should be lenient towards the weaker society as the spirit of IPR should retain services to the society at large. 

In the recent past, Bio-diversity has been yet another area of concern for developing countries with regard to IP issues.  It is known that the tropics have a rich heritage of bio diversity but many countries in this region lack modern scientific tools to get the full benefit of the said richness. The sovereign rights of conservation and sustainable use of biological resources of a state especially in third world countries are threatened by bio piracies by advanced countries for their vested interests. While, the Convention on Bio-Diversity (CBD) and TRIPS emphasize that the members should have bio-diversity legislations by adopting a sui-generis- system to suit their needs and priorities and thus prevent such illegal appropriation of the resources, the practices are not in true spirit of the provisions. Same is the case with the traditional knowledge possessed by many a societies in the third world. The fact that, many countries are yet to pass legislations even to protect the same, further endangers the rights of the third world countries. (India has drafted a bill on Bio-Diversity and tabled the same before the Parliament for approval).

6.0 OUTER SPACE ACTIVITIES AND IPR POTENTIALS

The human desire to conquer the outer space took wings with the launch of  the first artificial satellite, the Sputnik,  by the Soviet Union(Oct.1957). The maiden manned flight to the outer space by the soviet cosmonaut Yuri Gagarin (April 1961) and the moon landing by the American Apollo crew in July 1969 added further impetus to the outer space endeavors.  Thereafter, the number of human endeavors in space has grown by leaps and bounds and space has now become an arena for intense commercial competition, specially among the developed nations. 

Space exploration has tremendously expanded the horizons of human knowledge and activity. The first application of space technology in the field of telecommunication was heralded by the relay of voice and television signals through the 'Echo' satellite, launched in 1960 by the United States of America. This effort progressively developed into an operational international service by 1965.  The establishment of Intelsat (1964) paved way for global commercial communication satellite operation, which is the single largest space commercial operation. Global Mobile Personal Communication(GMPC) is now possible using satellite constellations and such systems are being implemented by many agencies. Broadband applications involving voice, data, and video are currently in vogue. The growth in the capabilities of the satellites over a period of time enabled the extension of their applications to meteorology, communication with ships (Inmarsat), air crafts, ground vehicles and to direct television broadcasting to private homes.   Satellite remote sensing is another widely used application  of space technology. Since 1972 United States' Landsat as well as the Soyuz, Salyut and Meteor space crafts of erstwhile U.S.S.R  and a number of satellites of other countries including Indian satellites (IRS) have collected extensive remote sensing data.

Further, the developments in space technology also led to the emergence of new areas of science like space medicine, space biology etc. The space technology also facilitated the use of outer space for military missions like reconnaissance, early warning, navigation and global positioning systems. Apart from this, various spin off benefits are derived from space activities in the field of new materials, processes and products. Manufacturing of special materials, large crystals, exotic pharmaceuticals preparations, using the unique environments of micro-gravity and high vacuum are now thought to be a possibility. Permanent space station with or without human presence is a reality of the day for industrial realisation of space products. Mining and excavation of asteroids and generation of power from outer space are the possible trends in the days ahead.

With the ever increasing applications of space technology in various fields, the concept of "outer space" has gained greater prominence, though no clear definition of  "outer space" exists. For the humans, the lowest level of outer space is in relation to the surface of earth and it extends without any limits. For practical limits an altitude of 120 or 200 kms. and above is believed to be outer space. A definition of "outer space" as suggested by a post world war historian H. Duncan Hall also makes a good meaning in our context. He defined outer space as "a power frontier where major interests, activities and forces of major powers -- and in varying degrees of smaller powers -- meet, overlap and conflict" [3].

7.0 VARIOUS TREATIES ON OUTER SPACE