The following is a summary of IALPG’s research “New Ideas and Ownership in Outer Space” available from the proceedings of the 2025 International Astronautical Congress.
- Significance of questioning patents in space
- Benefits of the Expression-Exclusion Divide
A common justification for intellectual property arises from the supposedly unanswerable question of how one would ever obtain sustainable investment for innovating if all the money spent in developing that innovation would lead to ideas which will be copied and marketed by other firms, and in many cases for a lower cost. To ask this is to forgo the first mover advantage, where the first firm to demonstrate progress (or the feasibility of progress) on a new idea is the firm which receives capital. In addition, there are many ways businesses can generate returns to shareholders and other investors without relying on government-issued monopolies for core aspects of their business. Rather than making expenditures in filing and enforcing patents, companies can and do, as has been common practice for centuries, invest in production structure, research and development, marketing, hiring and so on. The reason why firms with patents attract investment is precisely the same reason a business would attract investment if it were the only firm allowed to practice any other competitive aspect of its operations under a monopolistic privilege. A patent monopolises one piece of a firms’ business, rendering that firm the only market actor allowed to use a particular idea for a certain timeframe. By this logic, the relevant question becomes, why are not monopolies justified for expressing ideas which lead to innovations in the strategic location of infrastructure, in staff composition, the structure of production, more secure contracting, innovative insurance practices and so on. Respecting the Expression-Exclusion Divide ensures no slippery slope, thus bringing business into a more competitive environment rather than remaining prone to monopolistic, anti-competitive privileges.
While patents are transparent insofar as they promulgate the information relevant to a potential innovation, they are simultaneously prohibitive in nature. Were individuals free to use ideas, more actors are incentivised to enter a market to do so. The more actors in a market being creative and building upon what others have done before them not only benefits consumers but often benefits any first mover, and does so in the absence of a patent. A larger market means also means there is more information on how to best respond to customers and increase the customer base. The case of Steve Jobs and Apple is so famous because it is such a rare occurrence. In fact, relying on patents to drive innovation has no basis in research, as found by several meta-analyses conducted on the topic. A simple example is the many patents taken out by the Wright brothers in the United States. These patents not only blocked out market competition but even stifled government programmes and military initiatives, that is until the government convinced Orville and Wilbur Wright to join a patent-pool. Meanwhile, in France the absence of the Wrights’ patent thickets was paired with significant developments such as the first 60-minute flight, the first international and overseas flight and the technology accommodating passenger transport. In fact, during the heyday of aviation from the late 1930s to the mid 1970s, it was unusual for aircraft developers to obtain patents for their innovations. In the automobile sector, firms are known to actually encourage competitors to take advantage of their patent portfolio as a means to stimulate consumer demand and capital, two leading examples being Volvo and Telsa. Market activity not only benefits firms but also consumer and, as such contribute to economic prosperity.
Disputes would also be less likely in an Expression-Exclusion Divide for space. There would be no patent trolls, for one. Creators need not be concerned on possible infringements and bring focus on private law (i.e. contracting or tort). As such, dispute resolution and the reduction of transaction costs is also aided. Firms would be spared much of the hassle of engaging lawyers and insurers to manage the complex (and often conflicting) intellectual property frameworks and, instead, could rely on traditional out-of-court dispute resolution processes should a property matter arise. Avoiding patent-claims disputes may also increase the likelihood of cross-firm collaboration, rather than mutual antagonism. In relation to the Outer Space Treaty, the Expression-Exclusion Divide would disqualify states and non-state space actors to apply a jurisdiction to an idea, particularly relevant when it comes to the jurisdiction over space objects under article VIII of the Outer Space Treaty. Moreover, article I of the Outer Space Treaty’s benefit sharing principle is also facilitated by the Expression-Exclusion Divide, ensuring no individual, firm or state is prevented from using the ideas in, or derived from, outer space.
- Concluding Remarks
Property is evident among society when humans engage in exchange rather than violence over conflicts for scarce resources. This has occurred in many regions of the world in many eras of history without legal frameworks in place to ensure same. As individuals mutually respect one another’s appropriation and exclusive control over scarce items–that is, to acknowledge property rights–, the incentive to use violence for resolving those conflicts is drastically reduced. With this in mind, it is entirely understandable, even expected, that decision-makers in society should seek to build upon this positive trend by treating ideas as property. However, economic principles do not derive from political decree. When the law creates scarcity in what is otherwise abundant, the general public is more likely to be harmed, not benefited. Abundance enables greater choice and the greater choice in a society necessarily means a higher degree of economic prosperity. Space entrepreneurs should be free from challenges in contributing to economic prosperity as their counterparts in Earthly innovations. Before either embarking on, or dismissing, a path implementing the Expression-Exclusion Divide, a comprehensive cost-benefit analysis is needed in the domain of space-related patents and societal benefit. Or, more particularly, patents and their effect upon fulfilling the principles of the Outer Space Treaty.
Innovation is aided, not hindered, by the free-flowing and cross-dissemination of ideas. Much progress throughout history came about without any monopolisation of the ideas leading to technological innovation. The law protects certain, but not most ideas supporting a business, and fails to protect individuals and firms spending resources in basic research which is used by others to develop patented information. Because intellectual property is not property (despite WIPO’s claim) and hinders innovation, it has no basis other than as a discriminatory, anti-competitive privilege. With the Expression-Exclusion Divide, space would be an equal playing ground for everyone. Treating ideas as ideas rather than as property in space affairs will mean intellectual property will not prevent individuals exercising their property rights, whether as an organisation or person.
It is never easy to revisit the merits of a legal system which has been in place and expanding over centuries. This is especially so when an entire industry segments of lawyers, arbiters, academics and business people exist, with the individual actors therein relying on intellectual property for their livelihoods. Yet, the integrity and effectiveness of patents have already gone through several eras of questioning, not least in the advent of genome mapping, nanotechnology, generative artificial intelligence and, perhaps most famously, the internet. A re-evaluation of the purpose and effectiveness of patents as space activities become more commonplace for small business should be welcomed in any honest discourse. This is especially so when the interests of society are in mind, as is the case with activities under the jurisdiction of the Outer Space Treaty. An Expression-Exclusion Divide for managing ideas other than as property for in-space affairs benefits business (and innovation), is morally sound, streamlines public administration and better ensures compliance with the provisions of the Outer Space Treaty.
Select Resources
Books, Articles and Online Materials
- Boldrin, M. and Levine, D. K., “The Case Against Patents” 27(1) (2013) Journal of Economic Perspectives
- Chandra, Rasjshree, Knowledge as Property (Oxford University Press, 2010), ch 4
- DeLong, James and Tom Palmer, ‘Debate: Intellectual Property Must Be Protected’ Reason, (October 2018) https://reason.com/2018/09/29/proposition-intellectual-prope/
- Kinsella, Stephan, Centre for the Study of Innovative Freedom https://c4sif.org/
- Kinsella, Stephan, ‘Intellectual Freedom and Learning Versus Patent and Copyright’ (2010) The Libertarian Standard
- Machlup, Fritz and Edith Penrose, ‘The Patent Controversy in the Nineteenth Century’ (1950) 10(1) Journal of Economic History 1
- Mergers, Robert P and Nelson, Richard R, “On the Complex Economics of Patent Scope” (1990) 90 Columbia Law Review 839
- Moser, Petra, “How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs” (2003) Working Paper 9909, National Bureau of Economic Research
- Palmer, Thomas Gordon, ‘Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects’ (1990) 13(3) Harvard Journal of Law & Public Policy 817
- Robinson, Joan, The Accumulation of Capital, Basingstoke (Palgrave Macmillan, 1956), ch 9
- World Intellectual Property Organization, Intellectual Property and Space Activities (WIPO, April 2004).
Treaties and Legislative and International Instruments
- Convention Establishing the World Intellectual Property Organization, opened for signature 14 July 1967, 828 UNTS 3 (entered into force 26 April 1970)
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967).