Approximately 6,600 satellites have been launched since the beginning of the space age, of which 5,800 are now redundant and drifting – leaving only 800 operational. Of those 800, about 570 are for commercial purposes, and 30 are presumed to be for scientific use. The number of active military satellites is unknown.
These figures reveal that space waste is much larger than the current satellite fleet. For commercial satellites, the profitability threshold must be reached by commercializing services. Payment of these services is normally made by means of a license agreement. In fact, services rendered are only done so thanks to intellectual property "embarked" "vehiculed" or "produced" in or by satellites.
Photos From Space
The "production" of intellectual property essentially relates to turning photographs of space or the earth into data. For Europe, the legal regime of this observation, and the resulting product, is provided by different international texts relating to the observation itself and by the applicable national and international regulations concerning copyright and database protection.
In relation to observations from space, the applicable principles are found in two international instruments: (1) a 1967 treaty on the principles governing state activities in exploration and use of extra-atmospheric space, there included the moon and the other celestial bodies; and (2) the 1986 declaration of the United Nations concerning the observation of earth from space.
These two texts provide in substance that the exploration and use of extra-atmospheric space must be done for the benefit of all countries. Extra-atmospheric space may be explored and used freely by all states, without any discrimination, in conditions of equality and in accordance with international law.
All regions of the celestial bodies must be freely accessible. Extra-atmospheric space cannot be appropriated by a nation by proclamation of sovereignty, or by means of use or occupation or any other means. The eventual liability resulting from the exploration of extra-atmospheric space lies with the state that carries out the activity. The flag country being initially liable, it may turn against the owners of the satellite. The regime of protection of observation results – photographs and other collected data – is mainly governed in Europe by two legal institutions, namely copyright and database rights.
Human Control
Copyright protects the works of the mind. Briefly, human control is required for the elaboration of the work or a mastery by the latter of the creative control. Case law considers that, "it is necessary but sufficient" for a creation to be protected "that it is the expression of the intellectual effort of the person who made it, which constitutes an indispensable condition to give the work an individual character, through which a creation exists."
For a photograph, the debate concerns the question of whether there is an individual character. Thus, in a schematic form, a satellite photograph resulting from an automatic camera, or an automatic shot, is not protected by copyright. On the contrary, a satellite photograph resulting from the expression of human intellectual effort is protected.
The fact that the photograph is taken at a distance is indifferent. It must, but is sufficient, that a human be at the commands – is in control of the creative process which includes the moment of choice of the shot, the angle of view, contrast, objective, [wide angle or telephoto lens,] shutter speed, filters, image processing, image clean up, etc.
The protection of data gathered by satellites is also a question of fact. In most cases, database content resulting from celestial or terrestrial observation is protected by database rights. In fact, the database manufacturer may invoke a specific protection for the former, when the obtaining, verification or presentation of the database contents show a substantial investment from a qualitative or quantitative point of view. This will most often be the case concerning satellite observation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
