by Dr. Biswanath Gupta and Gnanavi Gummadi 19 November 2020
To enhance the sinking economy, India’s Prime Minister Narendra Modi has decided to reorganise the space sector. The new reforms are aimed at boosting private sector participation in space activities ranging from remote sensing activities to space exploration. The decision is also in line with the Prime Minister’s vision to make India self-reliant and technologically advanced. Privatisation of the space sector minimises the government budget in space research and space technology. With the entering of private companies into remote sensing activities, the legal issues and complications stemming from their operations intensify. Allowing private actors whose allegiances are unknown to sense the territory of India unreservedly, through satellites, raises glaring security concerns for the State. Additionally, under the Convention on International Liability for Damage Caused by Space Objects, the launching State of the remote sensing satellite is liable for any damages that arise out of the operations of private entities in space. Suitable legislation to govern and regulate the activities of private entities, then, becomes vital.
With remote sensing, another added necessity is to safeguard the data acquired through remote sensing with the aid of robust Intellectual Property (“IP”) rights. IP rights assist in protecting the investments placed on remote sensing activities through royalties that are collectible. Economically, IP rights are beneficial to both the government and private entities. The article discusses how IP rights could be utilised to enable the successful privatisation of remote sensing activities in India. The most crucial IP right for this article is copyright – granted for remote sensing data.
How IP rights Relate to Remote Sensing:
Data is gathered with the help of remote sensing satellites orbiting around the Earth. Remote sensing satellites sense the Earth’s surface or any object present on the Earth’s surface with the use of electromagnetic waves. The object or the surface which is being sensed reflects the electromagnetic waves which are then captured by the satellite’s sensors. Almost every satellite takes the help of electromagnetic scattering. LANDSAT, SPOT, IRS whose ownership rests with the USA, France, and India respectively use different techniques for the acquisition of data. The method used for the acquisition is given patent protection because every satellite uses a diverse mechanism which is novel. While the data gathered, internationally, is provided with copyright protection. The data is of two types – raw data and enhanced data.
Raw data is not readable as it contains computer-generated glitches and inconsistencies. Therefore, the raw data is processed in a ground station present on the Earth. The raw data is typically processed by a human being. The processing of the raw data involves a creative application of the mind by the human being. Copyright requires a creative application of mind by the author. While raw data cannot be copyrighted as it is automatic machine-generated, processed or enhanced data because of its added value by a human is given copyright.
As discussed before, copyright is available to enhanced data and not raw data. Similarly, the copyright does not extend to ideas, but only to the form of expression of ideas. The ownership of the data depends on with whom the copyright lies. Therefore, the question of with whom the ownership of the data rests is very crucial.
Existing practice in India:
Remote sensing is recognised as a “public good” in India due to its applications both within the government and outside of it. The Indian Remote Sensing Data Policy through the National Remote Sensing Centre (NRSC) states that the Government of India would be the sole and exclusive owner of the data collected and received through remote sensing. Therefore, the copyright of the enhanced remote sensing data, solely, rests with the Indian government. The user rights agreement also reiterates the above rule. The rationale behind the current policy seems to be that the monopoly over remote sensing data and activities exists solely with the Government of India. There was no necessity for a separate IP regime governing remote sensing activities and data. With the advent of privatisation in remote sensing in India, several private corporations would work and compete alongside the government. Hence, the need for a separate IP regime governing the activities of private companies has become crucial.
Need for an Exhaustive Legislation in India
A vast number of private firms are attracted to developing remote sensing raw data due to its many advantages. Remote sensing data is employed in agriculture, mineralogy, geology, hydrograph, and land use, to name a few. Applications like Google Earth, which utilise remote sensing data, are now available on our phones. Therefore, there is enough private interest in this domain. The competition amongst countless interested private corporations has to be healthy as well as legal – IP rights protection aids in regulating the competition.
An IP rights protection to the enhanced data of remote sensing would give an impetus to the participation of private companies in remote sensing data production and enhancement as they would want to reap most benefits from outer space in India. Privatisation of the remote sensing activities would stimulate civilian research and development in the field. As outer space is opened for private entities in India, a robust IP rights regime would nudge many of them to take the most benefit out of it. As competition increases, the need to outshine the competitor and to develop better quality remote sensing data further escalates. In this manner, competition amongst various private entities would stimulate new remote sensing technology and more data production.
Richard West argues that commercial remote sensing companies help States collaborate with other States as the information that private companies produce is not classified and is easily shared. Competition from foreign remote sensing would require a fool-proof IP regime in India. The French SPOT system and European Space Agency’s ERS-1 compete with the USA’s LANDSAT in the international market (see here). Similarly, the demand for the Indian Remote Sensing Satellite (IRS) system is gradually making its mark in the international market. With the privatisation of the outer space activities in India, the entry of private entities from India into the international remote sensing market would be possible. However, the need to protect their interests domestically becomes essential in order to prevent foreign entities from taking advantage of the legal gap and infringe on the data.
Another major dimension to this discussion is that the private entities’ participation will ensure an increase in the competition and the number of data enhancement firms within India. Dependence on foreign firms would gradually decrease. Indirectly, this would also strengthen the market for raw data in India. Thus, the benefits of an IP regime are manifold.
Data Enhancement Industry:
A healthy data enhancement industry is essential for privatisation to succeed and for the above benefits to be fruitful. This is because privatisation would fail without the data markets and data enhancement industry is best suited for expansion of these markets. Hence, expansion cannot occur without strong IP rights protection.
A strong IP rights protection is necessary to induce small firms to enter into the data enhancement business. Even a small firm would require placing in a considerable amount of investment for software, equipment, and trained personnel before beginning its operations. Copyright will protect this investment of the small firms in India. By making enhanced data more valuable, copyright would provide an incentive for more firms to join the operations.
In addition to increasing the data enhancement industry’s demand for raw data, copyright would surge the demand for enhanced data itself. A user of the enhancement data would be more intent in investing in enhanced data knowing that their competitor would not be privy to the information. For example, an oil company is more likely to pay a higher price for the location of oil reserves, knowing that its competitors do not have access to the location due to the copyright. This way, data enhancement firms would have more customers through IP rights.
Challenges in Privatising Remote Sensing Activities and Data
The memorandum published by the Office of Technology Assessment succinctly highlights the challenges in privatising the remote sensing activities. One can appreciate the relevancy of the challenges in the context of India, too. Following are the challenges that the country might face in implementing its structural change in outer space activities:
- Cost – There is no denying that private entities are concerned with profit-making, therefore, they may raise costs to levels that might not be affordable to the public.
- Uncertainty – The memorandum also points out that the States are, in a sense, more accountable to the public than private entities. There could, hence, be a relaxation in the quality, control and service of the remote sensing data.
- Monopoly – A single private company’s monopoly in an area like remote sensing data production could mean a decrease in the incentive to improve services and keep down costs.
- Prioritisation – Remote sensing data availability could be restricted to, or preference might be shown to users who are capable of bidding the highest price to the data.
- Data Archive – A private-sector data producer might choose only to collect, process, and store the data that has been requested for or paid for. Thus, data that might of lesser value, remote areas may go unearthed, and historical data about the earth may become unavailable and irretrievable.
- Data Restriction – The distribution of the remote sensing data may not be based on of non-discriminatory access. Instead, it may either be available to the first party to order or the highest price bidder of the data. This will ensure that the data is made available to the party which has more buying capacity.
The above concerns aside, one cannot deny the stimulating effect that privatisation might have on remote sensing activities and data. As noted before, it would improve the field which is underdeveloped as of now in India. IP rights would help ensure that the required development happens while safeguarding the interests of the parties involved.
Remote sensing has proved itself to be a viable and very advantageous tool having the potential to solve a variety of problems of humankind. The Indian government realised this potential could not be solely cultivated through government activities and accordingly privatised outer space and consequently, remote sensing. Privatisation thus is necessary for further technological development of remote sensing.
However, it appears that for the privatisation of remote sensing activities to be successful in India, a clear and comprehensive IP rights law governing remote sensing activities and especially concerning enhanced data is required. The potential law should protect the interests of States interested in this data. An IP law ensures the principle of non-discriminatory access to data so that the law conforms to the internationally common practice. As already stressed above, private entities in India would show interest in developing remote sensing in India only through a strong economic incentive that is provided by IP laws.