Introduction
India’s space program begun in the 1962 along with the inception of the ISRO. Space related activities, be it exploration, study or research, were strictly limited to the scope of the government. The space program was completely encompassed in all its functions by the public sector owning the entire monopoly over its control and ownership. The governance of the space program was maintained through a hierarchical structure that was headed by the Prime Minister of India, who exercised his control through the Space Commission and the Department of Space.
The Space Commission and the Department of Space were the legislative and executive wings, respectively, of the space program that were set up by the Central Government for an easier administration of the system. At the beginning of the program, the primary goal of the space sector in India was to promote the national importance of space research and place India on a global map in the space sector. Therefore, it was imperative to promote and nurture the public sector involvement in the space sector and achieve the goal of national development.
With the passage of time and gradual improvements and successes of the space program in India, the national space sector became more welcoming and open to the idea of inviting non-governmental agencies into the area of space research and exploration. However, India still lacks a comprehensive legislative framework for the governance of the space sector. Therefore, most of the regulation and control of the space sector in India happens through the regulatory bodies and their respective authoritative rules. The same will be discussed in this article.
Laws applicable to space law in India
India does not have a singular legislation that governs the jurisprudence of space law entirely. Instead, there are a variety of rules and authoritative procedures that need to be followed by an entity that wishes to launch a satellite, perform research or send space vehicles to the space for any purpose. The following are the various laws and rules applicable to the governance of the space sector in India.
1. National Space Activities Bill– The bill was introduced in the Indian Parliament in 2017 and has not been passed yet. However, this bill, if passed will become the fundamental legislative authority that governs all space related functions in India. The bill had taken a wide approach with the intention of easing the entry of private companies into the industry. The bill also lays down the jurisdiction for any wrongful act that may be committed in the area and the subsequent punishments for the same. Once the bill is passed, the government of India will start to formulate processes for distributing and authorizing licenses for commercial space activities.
2. The Remote Sensing Data Policy– Private entities that wish to engage in the activity of remote sensing through a satellite are governed and regulated by the Remote Sensing Data Policy. The RSDP is a subsidiary branch under the Department of Space and acts as the nodal agency for granting the licenses required to operate in remote-sensing in the space. This agency also aids in removing the encumbrance of the HIC clearance imposed on private entities, provided that such an entity has been recommended by the government.
3. Satellite Communication Policy– The SATCOM Policy is the primary governing policy of space affairs in India. The SATCOM Policy has a free and wide scope that envisages the entering of private sectors into the space sector in India and the attraction of Foreign Investment in India for the same. The SATCOM Policy regulates the leasing of the Indian National Satellite System (INSAT) to Indian entities, especially commercial, for the purpose of satellite communications.
4. The Space Liability Convention 1972– India has ratified this convention that talks about the liabilities placed on the signatory countries in case they cause any damage to the outer space.
Relevant Governing Authorities:
1. Indian Space Research Organization- The ISRO is the top-most and primary governing authority of the space sector in India. It has wide discretion powers while reviewing any application for any activity concerned with space. ISRO also has the responsibilities to receive the requisite clearances and permits from international space convention that India has ratified upon the application made by any private entity.
2. Antrix Corporation Limited- Antrix Corporation Limited is the commercial subsidiary of the ISRO which is involved in the activities of overlooking of launches made by foreign entities from Indian grounds. Therefore, any foreign organization, be it private or governmental, must require the permit from Antrix Ltd. to be able to launch their space vehicle from India. Antrix Ltd. is also very closely associated with India’s new vision of incorporation more private sector players into the space arena.
3. NewSpace India Limited- NewSpace Ltd. is a public sector undertaking that is involved in the practice of obtaining licenses from the ISRO and sub-licensing the same to applicants. It is mainly involved in increasing the participation of the private sector in the space arena.
4. Wireless Planning and Coordination Wing- The WPCW is a wing of the Ministry of Communications which governs the licensing and permissions of using the spectrum for the purposes of radio and international communications. The requirement of licenses under this wing can be, in some cases, exempted at the discretion of the Central Government. It works in consonance with the National Frequency Allocation Plan which governs the usage of spectrums in India.
5. Department of Telecommunications- A license needs to be granted by the Department of Telecommunications for any entity that seeks to engage in the activities of satellite communications or other satellite services to be launched from India.
6. Indian National Space Promotion and Authorization Center– this organization was set up in June 2020 which acts as a regulator that manages the functions of licensing, permitting and as an oversight system and also acts as a liaison to the private sector by assessing its needs in conjunction with ISRO.
Approvals required for entering the Space Business in India
1. HIC Clearance- Any operation in the space that operates with an agenda to obtain High-Resolution images of the outer-space is required to obtain the High-Resolution Image Clearance (HIC) Committee Clearance. However, government entities in India that operate in the space are exempted under this requirement. Only private and non-government organizations are required to obtain this clearance.
2. Outer Space Treaty 1967– India is a signatory of the Outer Space Treaty, which governs the activities of all the ratifying states in the outer space and therefore, any entity engaged in space travel from India must adhere to the rules laid down under this treaty. The application for the registration under this treaty must be submitted through the apex body of that particular state that governs the matters of space exploration and research.
3. The Registration Convention 1976- Any entity from within India that launches any object into the outer space must register the object with the registry under this Convention to secure the jurisdiction of India over the object launched.
Intellectual Property Rights
Although space exploration is no longer a new concept, IP rights governing advancements in this field are being highlighted recently. This is partly attributed to the fact that developments in the field of outer space are increasingly becoming a private, commercial affair. These activities, especially in foreign countries, are not state-run affairs any longer.
As such, it has become imperative for such developers and explorers to protect their innovation. The governments of such countries are obligated to help such inventors protect these innovations, by creating and enforcing appropriate intellectual property law and outer space laws so that research can continue and companies can succeed. After all, the success of the private entity in the field of space, also directly benefits the economy, propelling it as an advanced country. Since space developers understand the need to safeguard such inventions, the demand to create appropriate space laws has exponentially risen.
While non-governmental agencies can explore space privately, there are certain legal liabilities at play in conjunction with outer space and intellectual property rights. For instance, as per the Outer space Treaty of 1967; a treaty forming the basis of all international space laws – all countries (including India) undertaking space research are internationally responsible for any outer space activities, whether they are run privately or through government agencies. Private companies should seek permission from the government of their country before conducting any and all space activities.
IPR in space innovations basically implies that a country is capable of granting protection to innovations, in Space; outside of its own conventional and territorial boundaries. Inventors may pursue legal recourse if their creations are exploited in space commercially. These rights attempt to protect the inventors’ interests and encourage them to continue space exploration, while enjoying the rewards from their innovations.
Like almost every other innovation, intellectual property and space activities can be protected in four ways:
- The inventor can patent the creations by filing for utility or design patents;
- The inventor can trademark the creations;
- The inventor can file for copyrights for the creations; and/or
- The inventor can list creations as trade secrets.
However, before filing for patents, trademarks, copyrights or trade secrets, it is important to conduct thorough research to prove the uniqueness of the creations. Since intellectual property law and outer space laws are fairly new, it is rather essential to be well aware of the laws – especially because there are several international laws governing this kind of innovation.
Although the outer space remains one of the most mysterious and intriguing entities, innovations in this field are more advanced than ever. India, with its ISRO, is also a party to almost all prominent international space treaties. However, like most other countries, India does not have its own specific space legislations and must comply with those mentioned in outer space and intellectual property rights treaties. But since space activities in India are diversifying rapidly, it may be time to formulate specific comprehensive space legislation.
For the immediate future, various international treaties will likely be used as the basis for extraterrestrial IP law — the Patent Cooperation Treaty (PCT), Berne Convention, Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Though these agreements may serve as a suitable launch pad, there is no denying that specific space-related regulations will need to be implemented to minimize disputes across the final frontier.
Conclusion
The area of space law in India is still fundamentally underdeveloped. However, with the increasing dynamism of the sector, Indian legislation is fast-tracking its direction toward improving and strengthening its space law jurisprudence. At this juncture, the variety of laws and authorities governing space law in India are very scattered and uncomprehensive. However, upon the passing of a compiled legislation, which is in the works, will make the governance of the sector and the understanding of the jurisprudence much easier. To conclude, it can be said that the trajectory of the formulation of space law has been a hopeful and encouraging one in India.
Author: Abhishek Gupta, Senior Associate. (assisted by Prathiti Mulinti)
Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at info@samistilegal.in
