A jurisdictional void has emerged between the territorial nature of law and the unowned status of outer space. The rise of the commercial space economy is fundamentally reshaping the governance structure of outer space. This sector is rapidly transitioning from a government-dominated arena to a congested marketplace fiercely contested by high-tech enterprises, propelling a "New Space" wave that encompasses a series of cutting-edge activities including mega-constellations of satellites (global collaborative networks comprising hundreds or thousands of low-Earth orbit satellites), space tourism, the commercialization of satellite remote sensing, space breeding, and even lunar resource extraction and in-orbit manufacturing. The global commercial space industry's output value is projected to surpass the $1 trillion milestone by 2040. The forces driving this trillion-dollar market are far more complex and diverse than the narratives of individual heroism surrounding figures like SpaceX's Elon Musk or Blue Origin's Jeff Bezos. The top players in this field have already transcended traditional boundaries: the landscape now includes not only established aerospace and defense giants like Boeing and Airbus but also technology behemoths such as Apple, Google, and IBM, and even financial powerhouses like the US insurer State Farm, which has secured a place through its strategic moves in spatial remote sensing and image analysis. This cross-industry convergence is particularly pronounced in the realm of space AI, where the global market is forecast to skyrocket to nearly $58 billion by 2034. However, this intricate web of intertwined and conflicting interests across industries starkly highlights a fundamental misalignment with terrestrial intellectual property laws. For innovations and data originating from a domain that belongs to no nation, which country's laws govern their ownership and exclusive rights? A legal vacuum exists precisely where the territorial nature of law clashes with the stateless nature of space. The limitations of applying current intellectual property rules are becoming increasingly apparent. Existing intellectual property regimes are deeply embedded within the frameworks of their respective nations, founded upon sovereignty over territory, airspace, and territorial waters. This inherent "territoriality" fundamentally conflicts with the principle of "non-appropriation" of outer space established by the 1967 UN Outer Space Treaty, which defines outer space as a "global commons" and explicitly prohibits any nation from claiming sovereignty over it through assertion, use, or occupation. This legal conflict begins even at the starting line—where does outer space legally begin? The scientifically common 100-kilometer "Kármán line" lacks recognition in international law, creating a dangerous jurisdictional void between "sovereign airspace" and "free outer space." As spacecraft traverse this ambiguous zone, does the protection offered by ground-based intellectual property laws simply vanish? This boundary conundrum plants the first legal landmine for IP law applicability. Consider specific application scenarios: First, research and development in low-Earth orbit—when researchers successfully synthesize a novel alloy on a commercial space station registered in Country A, does the patent for this invention automatically belong to the registry nation or the researcher's home country? Second, remote manufacturing on deep space surfaces—using a 3D printer deployed on a lunar rover to fabricate urgently needed parts based on commands from Earth, who owns the patent? As AI deeply介入 data processing, this crisis escalates further: modern satellites no longer merely collect raw data but synthesize heterogeneous observation sources into high-value information products, like precise land-use maps or emission rate fields, through systems like Google's AlphaEarth. This raises novel legal quandaries: who holds the copyright for these algorithmically generated synthetic data—the original data provider or the owner of the AI model? Furthermore, when artists eventually perform in space, will the copyright and related rights for their musical works be automatically granted based on the author's nationality, or will they be subject to the copyright law of the launching state? This ambiguity also troubles trademark law: as companies like Virgin Galactic and Blue Origin advance space tourism, how can brands ensure their identity on an orbital space station does not become a generic term? Existing international IP treaties also appear inadequate when confronting space activities. While Article 27 of the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) establishes the principle that patents should be available for inventions "in all fields of technology" and explicitly prohibits discrimination in the enjoyment of patent rights based on the "place of invention," theoretically providing a basis for protecting in-orbit inventions, this treaty-level protection promise becomes largely ineffective against the reality of space commerce due to structural deficiencies in enforcement mechanisms. Furthermore, the application of Article 5ter of the WIPO Paris Convention for the Protection of Industrial Property, concerning patent exemptions for the "temporary entry" of vehicles, faces difficulties in the space context: originally intended to ensure freedom of air and sea transport, its applicability remains uncertain when one nation's spacecraft utilizes another nation's space station equipment, creating potential infringement risks for international cooperation. Similarly, while Article 5(2) of the WIPO Berne Convention promises automatic protection for works, resolving the substantive law issue of copyright acquisition, in practice, the actual realization and enforcement of copyright still heavily depend on national courts determining jurisdiction and applicable law based on private international rules, due to the territorial limitations of IP and the independent execution of procedural law by each country. Determining jurisdiction based on traditional concepts like the "country of origin" (place of first publication) or the location of the infringing act becomes highly challenging when creation occurs on an orbital platform operated by multiple nations, or when data is transmitted by teams across different time zones via various ground stations. Practical challenges also include determining ownership rights for space breeding: where the space environment acts merely as a mutagen, breeders must prove that the varieties selected on Earth (a process typically taking 3 to 5 years) meet the Distinctness, Uniformity, and Stability (DUS) criteria to obtain plant variety rights under the legal framework of the International Union for the Protection of New Varieties of Plants (UPOV). Legal protection during this lengthy process is highly unstable, relying primarily on trade secrets and contractual agreements. To fill this gap, the United States attempted specialized legislation through Section 105 of the Patents in Space Act of 1990, aiming to address jurisdiction over outer space IP. This provision states that any invention made, used, or sold in outer space on a space object under US jurisdiction or control, or on its component parts, shall be considered made, used, or sold within the United States for US patent law purposes; except if the space object is specifically identified in an international agreement to which the US is a party, or if the US has waived its jurisdiction or control for this purpose. These exception clauses ensure the Act does not undermine existing US treaty obligations or hinder future diplomatic flexibility in space cooperation when attempting to extend US patent law into outer space. The Act employs the "fiction of territory" principle, explicitly stating that inventions developed, used, or sold on US-jurisdiction-or-controlled space objects are deemed to occur within US territory, thereby extending the reach of US patent law. However, such unilateral patches are not internationally uniform. For instance, while the UK's Copyright, Designs and Patents Act 1988, based on traditional extensions of nationality principle in international law, explicitly extends jurisdiction to British-registered aircraft and vessels on the high seas, its applicability to spacecraft remains ambiguous. In contrast, Germany amended its national patent law to explicitly cover patents for inventions made on space facilities and components registered by or owned/operated by the European Space Agency (ESA) under the Convention on Registration of Objects Launched into Outer Space, providing clearer legal protection for inventions developed there. This proactive legislation offers greater certainty for Germany and its European partners in space IP protection. Facing the uncertainties of traditional IP law applicability, space companies are not idly waiting but are turning en masse to trade secret protection. Patent applications require public disclosure of technical details, a risky proposition in the space environment where unclear jurisdiction makes such disclosures vulnerable to "free-riding" by competitors, with little recourse for the rights holder. SpaceX epitomizes this strategy, deliberately avoiding patenting its propulsion systems and relying instead on strict information compartmentalization and non-disclosure agreements (NDAs), sometimes to the extent that no single employee has access to the complete process. Survey data from the space industry strongly corroborates this trend: according to the Space Foundation, 63% of space firms explicitly prefer using trade secrets or encryption over patents to protect core technologies, with nearly half concerned about infringement disputes in collaborative environments. Research by "IP Trends Monitoring" indicates experts focus IP challenges primarily on telecommunications and satellite services (31%) and advanced materials and manufacturing (28%), compared to just 13% for renewable energy. This anticipation of challenges in high-value, high-risk areas directly translates into massive security expenditures, with global space companies spending over $2 billion on IP protection technologies in 2023 alone. To build technical barriers for protecting space innovations, companies are deploying complex physical and digital defense measures. Beyond using tamper-proof sensors to detect physical interference with spacecraft components and implementing end-to-end encryption for satellite telemetry data and stored flight software, more aggressive tactics are employed, such as designing self-destructing memory that automatically erases sensitive material upon detecting intrusion attempts. At the hardware level, designers use "hardware obfuscation" techniques—burying critical circuits deep, using custom materials, or dispersing key functions across different modules—to drastically increase the cost of reverse engineering. Supply chain watermarking is also widely used to later prove hardware provenance, providing traceability evidence in disputes. While these measures can protect space industry investments in the short term, over-reliance on technological lock-in and closed ecosystems risks leading to the "Balkanization" of space in the long run, fragmenting outer space from a unified "global commons" into numerous incompatible, exclusive "private islands." Forcing private companies to register rights separately across Earth's jurisdictions to cover extraterrestrial areas inherently places them at a disadvantage. This fragmented approach not only increases the cost of space technology exchange and forces latecomers to reinvent the wheel but also seriously contradicts the Outer Space Treaty's original intent for space to remain an open domain. Uncoordinated, these technical barriers will favor large players with full-stack, closed technologies, potentially squeezing out smaller operators and emerging space nations, ultimately hindering equitable access and global collaboration in space. Addressing these dilemmas requires more than piecemeal domestic IP law fixes or reliance solely on technical measures. A comprehensive toolkit combining institutional building and legal coordination is necessary. First, at the institutional level, some foreign scholars propose establishing a dedicated coordinating body—an International Space Intellectual Property Organization (ISIPO), functioning as a hybrid of WIPO and the International Civil Aviation Organization (ICAO). ISIPO would address the limitations of the current over-reliance on the "flag state jurisdiction" principle (applying the law of the spacecraft's registry nation), which incentivizes companies to register spacecraft in jurisdictions with weak IP protection to legally avoid the reach of stronger IP regimes, leading to forum shopping for favorable courts. To plug this loophole, ISIPO's jurisdiction should not be constrained by traditional territory or registry concepts but should regulate IP based on the actual circumstances of space activities. ISIPO could also coordinate sensitive issues like "compulsory licensing," drawing lessons from the "common heritage of mankind" negotiations in deep-sea law to balance protecting returns on investment for spacefaring nations with ensuring access to space technology resources for developing countries through equitable benefit-sharing mechanisms. Second, within the existing international legal framework, efforts should focus on extending and adapting relevant treaties. In the trademark domain, exploring the use of the existing WIPO Madrid Protocol could allow for extending trademark protection to specific space regions or jurisdictional entities. Furthermore, the issue of orbital patents needs consideration. Some companies, by patenting specific orbital resources or spatial zones, could effectively use their exclusive rights to preclude other entities from operating in the same location, creating a de facto exclusion of space resources that directly conflicts with the principle of non-appropriation in Article II of the Outer Space Treaty. In conclusion, the ascent of the trillion-dollar commercial space economy has starkly exposed the fundamental misalignment of an intellectual property legal system rooted in terrestrial sovereignty and traditional "flag state jurisdiction." This legal conflict and jurisdictional vacuum have not only spawned a series of thorny ownership crises—from orbital manufacturing and AI data to space breeding—but also forced companies toward high-cost technical defenses and trade secret protection. However, this short-sighted technological lockdown is accelerating the "Balkanization" of space, creating systemic barriers that hinder equitable access. The only viable path forward lies in the international community urgently establishing a new activity-based coordination mechanism for space and systematically extending and adapting existing international treaties to ensure outer space continues to serve all humanity as an open and fair "global commons." (The author is the Director and a Second-Level Professor at the Center for Intellectual Property and Competition Law, Huazhong University of Science and Technology.)
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