21 August 2023

Scotland is fast becoming a hub for space innovation and a number of companies are taking the rich Scottish culture and history of manufacturing into the space sector. Companies like Skyrora, AAC Clyde Space, and Alba Orbital, all headquartered in Scotland, are establishing themselves as global market leaders in the development of satellite technology. It has also been reported that the Saxa Vord Spaceport on the island of Unst is set to be officially recognised as a Spaceport “within weeks”.

Below are a few key legal principles to be aware of if you are thinking of embarking on space projects or establishing your own space startup.

Intellectual Property

Trade Marks

Trade marks are important in establishing brand identity and being able to stand out in a marketplace. Think about US National Aeronautics and Space Administration (“NASA”) and their iconic logo. The US Government owns the trade mark for the logo which gives it the right to use the mark not only on its space apparatus, but also on merchandising and other goods and services. Those who use the mark without prior authorisation from the US Government could find themselves liable to infringement action.

Technology and innovation is often supported by strong brand identity. In a marketplace with several companies all striving to better each other in the “space race” a strong brand identity can be as important as technological advancement.

Copyright

Often thought of in a literary or artistic sense (for books, artwork, music, etc), copyright is a strong asset for those in the space sector. Satellites, in particular, use rafts of code that often take months (if not years) to produce. Code, where original, may be subject to copyright and will usually vest automatically in the creator (unless the creator is an employee or there is an agreement to the contrary).

Copyright is an unregistered right and there is no single database to consult (unlike trade marks) when trying to ascertain the ownership of copyright. Accidental infringement is fairly common and it is important for copyright owners to identify work subject to the right, where possible, so the right  can be easily enforced. The most common method is the use of the © symbol with the creator’s name and year of creation. More often than not, pieces of code will contain certain identifiers of copyright within them and it is important to check that code you may believe to be open source, does not contain any such identifiers.

Design Rights

Design rights come in two forms, registered and unregistered rights, and broadly cover the look and appearance of objects. This can include lines, contours, colours, materials, texture and shape. This could include, for example, the design of a satellite, which is new and novel.

Even where a design is not registered, it may still be protected where the design is novel and ownership of the design can be provided, for example, by marking blueprints or CAD designs and/or the finished design, or prototypes with a statement to the effect they that they are covered by an unregistered design right. Alternatively, a design can be registered with the UK Intellectual Property Office by filing an application for protection.

The extent of protection offered by registered and unregistered design rights does vary but again these rights can be important for brand identity and can separate you from the competition. There are advantages and disadvantages of both registered and unregistered rights and it is important both are considered when looking to best protect your work.

Patents

Patents are perhaps one of the strongest tools available to those looking to start up or operate in the space sector, as they cover inventions. With the rapid advancement of the space sector and innovation being common place in this sector, patenting inventions is vital to ensure adequate protection from unauthorised use by others. In order for a Patent to be granted the invention must be new, inventive and capable of industrial application (a technical process, or a method of doing something). Patents are registered rights and publicly available to view when published by the IPO. Protection is available for a maximum of 20 years, with annual renewals needed after 5 years. While patents offer significant protection, the availability of patents to the general public means that the process protected by the patent is also available to the public and can be used by other parties once the patent expires.

Protecting confidential information and trade secrets should, therefore, be considered hand in hand with the patent process. Non-disclosure and confidentiality agreements are, therefore, essential for space tech innovation and protection of inventions.

Data Protection

Finally, it is important those operating in the space sector consider data protection. Large amounts of data are being processed in several fields including: Net Zero Projects; Space Intelligence; Forestry; Agriculture; Energy Transition; Maritime; and Green Finance.

When processing personal data, it is important to consider  the principles of UK GDPR and the Data Protection Act 2018. This is a constantly evolving area of law that can be difficult to navigate, but boils down to personal data of individuals being processed fairly and transparently. This not only applies to the development of new technologies, but when dealing with any individuals. Data protection can be a difficult area to navigate but it can be effectively managed with proper planning and professional guidance.

Intellectual Property and Data Protection play a large part in the space sector and making sure your legal affairs are in order before launch is vital.

If you would like to discuss your intellectual property and data protection needs please contact the BTO IP and Technology Team.

Lauren McFarlane, Associate: lmf@bto.co.uk / 0131 222 2939

Jamie Stewart, Trainee Solicitor: jst@bto.co.uk / 0131 222 2939