IP Protection in the Artemis Era: Will Rights be Lost in Space?

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One clear objective of Nasa’s Artemis missions is to bring about a permanent presence on the Moon that will include commercial and industrial projects. The potential for commercial and industrial activity on the moon is well-known. The range is vast, including the extraction of oxygen from lunar debris (regolith), solar farming, the extraction of hydrogen and water, the extraction of minerals (including critical minerals) and their use as building materials. Activities on the moon are seen as key to paving the way to human presence on Mars, including by having certain resources already present on the moon to facilitate their use and transport at a lesser cost to Mars. 

Many of these activities would typically involve patented technologies on earth. It is also quite conceivable that new technologies will need to be developed that will be specific to the lunar environment or to the composition of materials found on the moon. This is not science fiction. Nasa launched in recent years several challenges for companies to develop technologies that could be used on the moon. One recent challenge pertained to collecting lunar debris (see Centennial Challenges | NASA). Processing lunar debris is the next logical step. It is obvious that except for light and highly valuable materials, it is likely that industrial activity will take place directly on the moon. The crucial question then is how to protect intellectual property on the moon? 

A first step is to review the Artemis Accords, which were drafted to set basic principles for countries participating to these missions. Canada has signed on at this stage. While the text of the accord opens the door to open sharing of research data (without imposing it on civil parties), it does not include any substantive provisions regarding intellectual property protection. It merely states that intellectual property will be the subject of future bilateral agreements, which is unhelpful for businesses currently planning to participate to lunar endeavors. It merely signals that they should be hiring lobbyists to preserve their interests. 

Reference is made to the Outer Space Treaty in the Artemis Accords. The former has been ratified by a significant number of countries, including Canada. It provides that civil parties may only engage in activities on the moon and elsewhere in space with the authorization and under the supervision of a member State. It also provides that facilities on the moon or elsewhere will be open for inspection by other member countries, which could potentially undermine trade secret protection. Resolution of disputes is stated to occur between member states and possibly relevant international organizations, recourse to civil courts is therefore not explicitly recognized in the text of the treaty. That being said, member States could conceivably agree on a common framework for disputes to be resolved before tribunals.

Previous frameworks may not be helpful. The agreement established for purposes of the international space station (ISS) in 1998 did address intellectual property protection in some detail. The solution was to deem the module contributed by each participating country to be an extension of its country and simply apply national laws. This approach may have been more useful for countries that contributed habitable modules than for Canada, whose contribution consisted of the robotic arm and the “Dextre” manipulator. In any case, this approach may not be useful on the moon, as certain processes may be carried on in the field by robotized mobile units without being formally attached to a “module” associated to a particular country. Permanent human presence on the moon will also bring to the fore a need for rules regarding inventions made in space. There was some discussion of this issue in the 1998, but mainly to address obstacles to patent filings on national security grounds.

It is unclear at this point whether existing national rights will be extended to the moon in a manner coherent with the nature of this new environment or whether new “lunar” IP rights will be granted. The latter could be derived from existing international conventions and common principles.

Companies contemplating a participation in space exploration would be wise to map out their IP strategy in light of this evolving landscape. Excluding the moon and other locations in space from licensing agreements is a start in order to preserve the value of these rights. Taking into account the possibility that new rights covering the moon and other regions of space (distinct from national IP rights) may be granted in drafting the IP covered by licensing or assignment agreements is also important. Securing patent protection in key countries potentially associated with lunar development projects would also be important in the event that national rights are simply extended to the moon. The fate of trade secrets is quite uncertain on the moon, so more serious consideration should be given to patenting inventions that could be used on the moon. When drafting claims for patented inventions that are susceptible to be used on the moon, consideration should be given to local operational parameters (such as the more limited gravity) to ensure that claims have a chance of reading on to lunar activity. While commercial operations seem far away, intellectual property generated today may be key to some of these activities and be still in force when they begin. In the words of former US president Roosevelt, “tomorrow is now”.

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a Tiara and glass slipper with the forest in the background.

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picture of the the entrance of the Supreme Court of Canada, or Cour Supreme du Canada, in Ottawa. The Supreme Court of Canada is the highest court of Canada, the final court of appeals in the Canadian justice system. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada

Fasken successfully represented several of the respondents before the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30. In its recent decision, the Supreme Court conclusively rejected attempts by SOCAN to “double dip” on copyright royalties via the making available of copyrighted works and in the process helped clarify a number of important legal issues. Some of these issues are unique to copyright law, while others have broader relevance, including issues related to determining the standard of review post-Vavilov and how treaties should be used to interpret statutes.

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