Recently, the Web (or at least the space-oriented part) has been filled with discussions, defenses, and even some dismissals of a proposal by the Space Settlement Institute called the Space Settlement Prize Act. This proposed law would create a framework for recognizing private ownership claims on the Moon and other celestial bodies. In other words, it would pave the way for private property on the Moon, something many believe the Outer Space Treaty of 1967 (OST) prohibits. Who do we have to thank for this renewed debate? Rand Simberg, aerospace engineer and noted space policy commentator (among other things). Rand champions creation of private property rights in space. In a recent CEI paper on the subject, he points out that property rights are the sine qua non of wealth creation and argues that there is a loophole in the OST which allows private lunar land claims. I, too, am strongly in favor of personal, real, and intellectual property rights in space. Personally, I’d like to retire to my own modest crater overlooking the Sea of Tranquility one day. Jeff Foust and many others have done a great job of capturing the essence of Rand’s arguments so I will spare you my hackneyed attempts to condense the ever-growing conversation. Instead, let’s look at how the United States and other nations have already limited the reach of the Outer Space Treaty via patent law and customary international law. These limitations may provide support for adoption of the Space Settlement Prize Act but may also lessen the need for such an explicit confinement of the OST.
Laws, including the US Constitution, do not confer or confirm unlimited rights, even where their language does not contain explicit limitations. The freedoms of speech and expression contained in the First Amendment are some of the most cherished and jealously guarded in our nation, yet they have limits. You cannot falsely shout “Bomb!” on an airplane or “Fire!” in a crowded theater. Those expressions in those situations would likely incite a riot or a panic, and are therefore not protected by the First Amendment. Like the First Amendment, the OST has been limited beyond the scope of its verbiage by common sense, customary international law, and Federal law.
35 USC §105
Two provisions of the OST address exploration of celestial bodies and scientific investigation in space. The last paragraph of Article 1 states “[t]here shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies….” Article IV also states “[t]he use of any equipment…necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.” In other words, one possible interpretation of Article IV would suggest that I, as a US citizen exploring the Moon, am free to use whatever technology necessary to explore the lunar surface, even if someone else holds a US patent on that technology! Additionally, it looks like I am free to perform science experiments in outer space until I am (metaphorically) blue in the face, without fear of a nasty patent infringement suit!
US law, in the form of 35 USC §105 “Inventions in Outer Space” pours cold water on my dreams of a wild frontier where patent law doesn’t protect the inventiveness of others. §105 applies US patent law to objects and components in outer space and on the Moon when those items are under the jurisdiction and control of the United States. Article VIII of the OST and other international treaties grant the US jurisdiction over objects launched from the US, so I could not, for example, copy someone’s patented design for a 3D printer and escape liability for patent infringement by hitching a ride for myself and my ill-gotten 3D printer to the Moon, even if I used it for scientific purposes or exploration. Unlike a few other jurisdictions, US patent law does not excuse patent infringement when done in a scientific research setting. Via this combination of US and international law, a form of property right is already baked into the OST: intellectual property rights!
Removing objects from the Moon
Despite a broad statement in the second paragraph of Article 1 of the OST, stating that “[o]uter space, including the Moon…shall be free for exploration and use by all States…”customary international law indicates that private ownership can exist in portions of the Moon. In a response to Rand Simberg’s discussion of the Space Settlement Prize Act, space lawyer James Dunstan points out that the exchange of lunar rocks recovered during the US Apollo missions for Soviet samples excavated by their Luna probes “established customary international law that objects removed from their natural state, become the property of the remover.”
The recognition of intellectual property rights in space by an influential signatory to the OST (i.e. the United States), the established international law principle that materials mined from the surface of a celestial body become the property of the remover (thank you to the USSR and America!), and de facto property rights in orbits indicate significant leeway in the application of the OST to both private and sovereign endeavors. The current leeway seems to legitimize potential ownership claims by future lunar mining companies to their mined ore. Viewed in this more flexible light, the OST may not be antithetical to Rand’s proposal, although the Space Settlement Prize Act may be unnecessary to encourage private lunar mining and other private endeavors in space. As James Dunstan points out, there is already international legal support for private claims and transfer of materials mined on the Moon.