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SOVEREIGNTY AND OWNERSHIP IN RELATION TO OUTER SPACE …
subject of these rights, which is intangible asset. Conflict of laws do not arise
because of the above mentioned territorial restrictiveness.
53
On the international
level it the protection of industrial property rights and copyright provided on the
basis of relevant international agreements.
As it was said before, the Space Treaty forbids in its Article II appropriation of
outer space, including the Moon and other celestial bodies. The
territorial principle,
in the true sense of the word,
cannot be
therefore
used
. In addition, Article I of the
Space Treaty says that the exploration and use of outer space, including the Moon
and other celestial bodies, shall be carried out for the benefit and in the interests of
all countries, irrespective of their degree of economic or scientific development, and
shall be the province of all mankind. This provision of Article I comes into direct
c
ontrast
with intellectual property ownership right, which
provides the owner with
temporary monopoly.
54
The right to intellectual property in outer space can be based, in the sense of
Article VIII of the Space Treaty, on the jurisdiction of the state in whose registry an
object launched into outer space is carried. The object launched into outer space
can be compared to the territory of the state. Some authors speak of quasi-territorial
jurisdiction because of this reason (see above). Jurisdiction of the state on whose
registry an object launched into outer space is carried can be considered
the most
appropriate means
55
for regulation of the intellectual property rights. The USA,
for example, changed the Patent law in 1990. According to this law any
invention
made, used or sold in outer space
on board a ship under the jurisdiction or control
56
of the USA is considered to be made, used or sold on US territory except where
an international agreement has been concluded. American Patent Law, however,
contains the words
jurisdiction or control
. The words
jurisdiction or
control
57
which
are used in the US Patent Law are considered as problematic in legal theory. It is
pointed out that the formulation is in contrast to Article VIII of the Space Treaty,
where the term
jurisdiction and control
is used.
A proposal of a
regulation
is being prepared in the European Community which
refers
to the patent law in the Community.
The proposal of the regulation according
to Article 3, of 2003
explicitly refers
58
to “inventions created or used in outer space,
53
See Kučera, Z.
Mezinárodní právo soukromé
. 6. opravené a doplněné vydání. Brno : nakl. Doplněk,
2004, p. 283.
54
See Sgrosso, G. C. Applicable Jurisdiction Conflicts in the International Space Station. 43rd Colloquium
on the Law of Outer Space, Rio de Janeiro, 2000, p. 178.
55
See Dunk, F. G. The Dark Side of the Moon. The Status of the Moon : Public Concepts and Private
Enterprise. 40th Colloquium on the Law of Outer Space. Turín, 1997, p. 122A.
56
See Balsano, A. M., de Clercq, A. The Community Patent and Space-related Inventions.
Journal of
Space Law
, 2004, Vol. 30, p. 2.
57
See Diederiks-Verschoor, I. H. Ph.
An Introduction to Space Law
. 2nd. Edition. The Hague – London
– Boston : Kluwer Law International, 1999 pp. 116-117.
58
See Balsano, A. M., de Clercq, A. The Community Patent and Space-related Inventions.
Journal of
Space Law
, 2004, Vol. 30, p. 6.