The 2015 film, The Martian, follows Mark Watney (played by Matt Damon), a scientist who after being left behind on Mars by the rest of his crew, turns to his engineering and botanical prowess to survive until a rescue mission from Earth can reach him.
As Watney gears up to travel across Mars in a rover, he weighs in on the issues of space law and brands himself a “Space Pirate”.
His reasoning? There’s a treaty that prevents any nation from owning celestial bodies and another treaty saying that if you’re not in any country’s territory, maritime law applies. Watney reasons that this makes Mars international waters and he is therefore a “Space Pirate”.
A tongue in cheek reference to be sure, however with the advent of commercial space enterprises, “space law” and “space pirates” and the question “is it possible to own a part of space?” are slowly seeping out of the science fiction realms and into reality.
At present there are multiple nations hoping to build settlements on the Moon within the next twenty years.
The European Space Agency (ESA), for example, hopes to build a “Moon Village” by 2030.Although the Moon Village does not quite aim to place houses, shops and leisure centres on the surface of the Moon, it will see architecture placed on the Moon supporting scientific activities as well as potential resource exploitation (and maybe even space tourism).
NASA, the Russian Space Agency (Roscosmos) and the China National Space Agency are not far behind, and all have plans to build Moon Bases.
There is probably little question that the individual countries would own the actual architecture/bases that they place on the Moon, but what about the land beneath the architecture? What about those resource mining on the Moon – can anyone really stake claim to resources if they do not own the land from which those resources come from?
It turns out Mark Watney was half-right with his “Space Pirate” reasoning. There is an Outer Space Treaty dating back to the late 1960s that prevents any country from laying claim to physical territory the Moon.
However, the Outer Space Treaty makes no reference to private and corporate ownership of territory on celestial bodies.
Some are arguing that this leaves a loophole in the Treaty, including private astronaut Richard Garriott.
Garriott became the world’s only private owner of an object on a foreign celestial body when he purchased the Soviet Union’s moon rover (Lunokhod 2) at auction for $68,500 in 1993.
The rover is still, to this day, on the Moon and Garriott speculates that this makes him the only person to have a (somewhat) credible claim to land on the Moon, in particular the land beneath the rover itself.
So should you be rushing out investing in real estate on the Moon? There are certainly websites selling acres of land on the Moon based on the above private-ownership interpretation.
However, with the advent of Moon Villages it seems that the loophole will be tightened up in the coming year and that at the very least, you would have a legal battle on your hands if you tried to enforce such ownership.
For now, those businesses boldly going where none have gone before are perhaps better placed to invest in more well established legal rights.
As with any new technology, patents will be a major aspect of a space-tech start-up’s Intellectual Property strategy.
If you have an invention you want to obtain patent protection for, do not wait until there are villages on the Moon before contacting a patent attorney.
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