Intellectual property in space – A review from a German perspective

How far do German sovereign rights apply? On the ground, in the airspace above or even in outer space? Where is the boundary between airspace and outer space? The protection of intellectual property, which is so clearly attributable on solid ground, thus seems to get lost in space. Regardless of whether we are talking about scientific drawings or space-related inventions, the question arises: Does the German legal system protect intellectual property in space?

I. Intellectual property under German law in outer space

The application of German law is conceivable if German law on the protection of intellectual property also applies in outer space from the outset or at least continues to apply in outer space in special constellations.

1. Principle: No German sovereign rights in

However, the principle of territoriality in conjunction with the "res communis" principle of space law prohibits German law from having an effect in outer space.

The principle of territoriality states that the legislator may not make any regulations outside its territorial area of competence and therefore may not prohibit actions that take place there. German territory is not limited to the ground, but also extends to the airspace above it. At least the first 60 km of airspace above the ground is also considered part of German territory. However, German territory ends where space begins.

This follows from Art. II of the Outer Space Treaty (OST), which is the first international agreement on space law since 1967. For the now 112 contracting states (as of April 2025), it sets out the basic rules for state activities in outer space as a "space constitution" or "Magna Charta of space law". According to Art. II OST, outer space is not subject to national appropriation by claiming sovereignty. No state can therefore claim the validity of its national law in outer space, because it is regarded (like the high seas, the deep sea and the Antarctic) as "res communis omnium", as a thing that belongs to no one but to all.

This means that outer space is a state (legally) free space. Consequently, the scope of application of German law as a whole and also for intellectual property does not extend into outer space.

2. "Taking along" pre-existing property rights

However, it is now also recognized under the territoriality principle that ships on the high seas or aircraft in the air are still subject to the law of their country of origin, even if they have left the national territory in the true sense of the word. Can a German spaceship also "take" German law with it into space?

According to Art. VIII sentence 1 of the Outer Space Treaty, a state retains sovereignty and control over the objects it registers and launches into space (i.e. spacecraft in particular) and their entire crew while they are in space. The Outer Space Treaty thus establishes a quasi-territoriality: spacecraft are treated as if they were part of the national territory, even though they are not in the classical, geographical sense. The spacecraft thus forms a capsule of German state authority in otherwise state-free space. Anyone who uses a German patent in a German spacecraft, for example, must comply with German patent law - just like on Earth.

According to Art. VIII sentence 2 OST, the ownership of other (physical) objects that are taken into space is not affected by their stay in space. Therefore, if the spaceship as a whole and the technical equipment taken along are the property of the Federal Republic of Germany, this does not change in space.  This should apply accordingly to intangible objects such as inventions. It is true that intangible objects cannot themselves be launched into space due to their lack of physical form, because if, for example, a copyrighted map of the moon is on board, it is not the intellectual achievement of the creator himself that is transported into space, but a copyrighted workpiece to which intellectual property rights also exist.  Whoever uses the object brought on board must therefore also observe the associated intellectual property rights.

One could draw the reverse conclusion that outside the German spaceship, anyone is allowed to use intellectual property as they wish. However, this is not always true. German law can also apply in these cases, as the decisive factor for the infringement of intellectual property rights is generally not where the infringer is located, but where the act of infringement has impact. If, for example, the infringer records a protected song in outer space and then publishes it (back on earth) in such a way that it can be accessed in Germany, the infringing act has an effect in Germany. German law also provides protection in these cases

However, if the infringing act only has an effect in outer space, only outer space law applies. In this state-free space, there are actually no consequences if a third party uses German patents, for example, without authorization. This contradicts the growing practical need for extraterritorial protection of intellectual property. Over the last few decades, numerous solutions have therefore been developed that construe a continued effect of territorial property rights in outer space. However, a generally accepted solution does not yet exist in these cases. This also requires the parties concerned to agree on a concept.

3. Creation of new property rights

What actually applies to intellectual property that is only created in space?

If the intellectual property arises on board a German spaceship, the principle of quasi-territoriality from Art. VIII OST: All events on board must be treated as if they had taken place on the corresponding national territory. Intellectual property rights that arise on board a German spaceship are subject to German law.

Special features arise in state-free space. If the intellectual property arises outside the spacecraft, the prevailing opinion is that the country of protection principle applies. According to this principle, the law of the country in which the creator or inventor seeks protection applies (Art. 8 para. 1 Rome II Regulation). For example, if an inventor applies for a patent at the German Patent and Trademark Office, he claims protection for his invention in Germany. In accordance with the country of protection principle, German law then applies – even if the person seeking protection is located in outer space.

It is particularly easy to determine which country is the country of protection in the case of rights that require registration with a national office. Anyone wishing to register a patent applies for patent protection from one or more national patent offices or a community of states (such as the Unified Patent) and thus requests the respective legal system(s) to protect their intellectual property. 

However, the situation is somewhat different with copyrights. Here, all that is required is the creation of the work and no additional state involvement (in many countries – including Germany – copyrights are not registered). Protection arises with the creation of a work. In these cases, it is also possible to determine the country in which protection is sought, e.g. if a scientific drawing of the surface of Jupiter's moon Ganymede is to be protected against unauthorized use in Germany: For published works, the law of the country in which the work is first published should apply and for unpublished works, the law of the country of which the creator is a national (country of origin principle).

In the more practically relevant cases of published works, the country of protection and country of origin principle often lead to the same result. Anyone who wants to publish a work in Germany regularly also seeks protection of the work in Germany.

The only question that remains open is which law should apply if the inventor or other person concerned is seeking protection exclusively in outer space (e.g. against unauthorized use by other astronauts; purely internal to outer space). However, this only applies in rare exceptional cases. For the most part, it is not protection against unauthorized use in space that is sought, but against unauthorized use on Earth. But will this remain the case if the interests of politics, industry and science turn more and more to space in the future? There are still no standardized solutions for this either.

II. Conclusion

According to the territorial principle, German state authority ends where outer space begins. According to the "res communis" principle of the Outer Space Treaty, outer space is a state-free space that belongs to no one because it belongs to everyone. German intellectual property law therefore does not apply to outer space. However, this does not mean that intellectual property remains unprotected in outer space.

Intellectual property rights that have already arisen on earth can be "taken along" into outer space in accordance with Art. VIII Outer Space Treaty and also be newly established (quasi-territoriality). The spaceship thus forms a capsule of German state authority in otherwise state-free space.

In the case of intellectual property that originates outside a German spaceship in outer space, the country of protection principle applies in most cases: the law of the country in which protection is sought applies. This is particularly easy to determine in the case of property rights that require registration (e.g. patents or registered trademarks).

If protection is only sought in outer space, the country of protection principle does not help. It remains to be seen how intellectual property can be protected in purely space-related matters in the future.