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investors. Some authors
49
propose to limit the uncertainty for private investors by
substituting the Moon Agreement with a new treaty. As another alternative solution
they propose concluding a multi-lateral treaty of the space powers, or even the option
of unilateral state recognition of the claims of its nationals.
These views can be argued
against
50
by the fact that a replacement of the Moon Agreement would inevitably
take a long time. It would also lead to chaos and uncertainty in the legal environment
in respect to the Moon. On the contrary, it could dissuade the private sector from
exploration and exploitation of natural resources of the Moon and, in consequence,
from the exploration and use of outer space.
It can be added that the Moon Agreement of 1979 does not forbid ownership
but only requires the states parties to establish an international regime for regulation
of the exploitation of natural resources of the Moon as soon as such exploitation
turns feasible in the near future. It is evident that a certain regulation of the activities
of private legal persons or individuals by the states shall be necessary. The wording
of Article 11, paragraph 7, letter d) explicitly requires that the future regime will
lead to an equitable sharing by all states parties in the benefits derived from those
resources, whereby the interests and needs of the developing countries, as well as
the efforts of those countries which have contributed either directly or indirectly to
the exploration of the moon, shall be given special consideration similar to the UN
Convention on the Law of the Sea of 1982. The provision of the Moon Agreement
is therefore basically more advantageous for the developed countries than a similar
provision in the UN Convention on the Law of the Sea of 1982. There is no doubt
that the more technologically advanced states will fix an advantageous position in the
future regime which will include also legal persons and individuals.
5.3 Ownership of results of intellectual activities in outer space especially
in relation to inventions
The issues of
intellectual property
rights also arise in relation to outer space
.
On board the International Space Station (ISS), for example, various medical and
biological experiments are to take place, as well as experiments in the physical
sciences or pharmaceutical sector.
51
Legal protection of the results of intellectual
activities in space, for example the patents, give rise to problems at first glance. As
Kučera
52
notes, industrial property rights and copyright are
territorially restricted
.
They arise and protection of them is provided only for the area of a particular legal
order, for the
territory of a particular state
. This is also caused by the nature of the
49
See Smith, M. M, Dasch, P., Pierce, A. in: Masson-Zwaan, T. Other Report, IISL Colloquium,
4-8 October 1999, Amsterdam.
Journal of Space Law
, 1999, No. 2, p. 147.
50
See Ram, J. Twenty Years of the Moon Agreement : Space Challenges for Returning to the Moon.
Zeischrift fur Luft und Weltraumrecht
, 2005, No. 2, p. 260.
51
See Balsano, A. M., de Clercq, A. The Community Patent and Space-related Inventions.
Journal of
Space Law
, 2004, Vol. 30, p. 2.
52
See Kučera, Z.
Mezinárodní právo soukromé
. 6. opravené a doplněné vydání. Brno : nakl. Doplněk,
2004, p. 281.