Satellite Image and Copy Right Protection: A critical analysis

Satellite image have many uses. It is useful in metrology, agriculture, forestry, environment, education, disaster management, intelligence and warfare. This makes the need for its protection imperative. The demand for remote sensing data has increased dramatically, mainly due to the large number of possible applications capable to exploit remotely sensed data and images. This increase in market potential has made both the government and the private entities interested about the potential commercial gains likely to flow from satellite images and remote sensing data. This development also makes the government responsible for its protection to facilitate further development of it. Both satellite images and remote sensing data are in the need of protection from foreign nations, private entities and pirates from infringement of its intellectual property. Thus there is urgent need of legal protection for it. But while on the one hand there is need for protection for the interests of so many entities are involved in these sensitive data and to promote further growth of this are, on the other hand it clashes with the international mandate of being left free for “benefit of all mankind”[1] . This leads to requirement for a greater probe into the extent of protection the non governmental entities are entitled to.

There are different aspects of protection of satellite images or remote sensing data protection but this present paper seeks to look mainly into the copyright protection available to the satellite image which have been produced by satellites. One of the arguments put forth by the scholars[2] is that copyright protection will reduce availability of data to developing country. But on the other side non protection of such data to be used by non governmental entities for commercial purpose, cannot be justified. This makes copyright protection of satellite image and remote sensing data quite a challenge.

In one instance, a German court in a matter[3] did not grant copyright protection on ground that under German copyright Act protection is available to the work of natural person, because only a natural person has the personal and intellectual capability for the creation of a work. A legal person can neither be author nor creator of an image and hence is not entitled to any copyright protection.[4] And in another French case[5] the Tribunal confirmed that the company Rubie’s France has committed acts of counterfeit to the detriment of the company. In this case Rubie’s France used image taken by the US company and used its technical skill in processing the satellite image constituting human creativity. These situations lead to confusion over the legal status of protection of satellites images.

Definition of Remote Sensing

 Remote sensing has been defined in The Principle Relating to Remote Sensing of the Earth from Outer space, 1985. Under principle 1 (A)[6]  of The Principle Relating to Remote sensing of the Earth from Outer space, 1985 Remote sensing means “the sensing of the earth from space by making use of properties of electromagnetic waves emitted, reflected or diffracted by the sense object for purpose of improving natural resource management , land use and the protection of environment[7].

Copyright protection to Remote Sensed data

Earth can be sensed by either satellite or the by aerial navigation system. Remote sensing data are primarily not usable without enhancing and these primary data need to be processed before it used and this needs specific technical skill for enhancing the primary data.[8] Similar is the case for satellite images. This difference is also important because copyright protection for satellite image or remote sensing data needs to understand difference between raw data which is directly received by satellite and not processed and contains digital information of image, while processed or enhanced data contains interpretation, enhancement of information, and analysis of image through technological skill by human interference. Copyright protection is available to remote sense data which are processed by Berne Convention 1971. Article 2 (1)[9] includes remote sensing data as the “…….scientific and artistic domain, whatever may be the mode or form of its expression………”[10]. It thus expressly includes satellite image which are processed. But it is notable that copyright protection does not include idea. It provides protection to form of express creativity only.[11] Enhanced or processed satellite image are also protected under National copyright laws. Almost all major countries are party of the intellectual property right convections such as Universal Copyright convention 1971 and Berne convections 1971. Both these conventions are based on different ideology. Copyright is an Anglo section  concept and it defines  exclusive propriety for limited duration and Berne  convection is based on “Droit d Auteur” and this have accepted 50 years of protection, however, in practice both conventions overlaps in more than one areas.

Today our World is facing great challenge for protection of unenhanced or unprocessed  satellite image because copyright protection is not available to this either in the Berne convention or Universal copyright convention because unprocessed Data are directly received from satellite and there is no human creativity involved in unprocessed data.

United States privatized via the Land Remote Sensing Commercialisation Act 1984[12] and The Earth Observation Satellite Company was the first to get license for remote sensing.[13] The Land Remote Sensing commercialisation Act 1984 was silent on the copyright protection of data obtain by the remote sensing though it was fulfilling the  U.S. legal obligation under International Space Law by having provision on  “make raw data available to all user on non discriminatory basis”.[14] But it was silent on the question of copyright protection for raw data. The natures of raw data not fall within scope of copyright protection because it does not fulfil the criteria of the copyright. There are four basic criteria that need to be fulfilled for protection of the copyright[15]. Firstly, the work must be unique and original, secondly, the work must present some material support, thirdly work must be authored by someone and fourthly, work must be creative which supposes particular intervention of human being.[16]  If we put satellite unprocessed image in these criteria we find that firstly, yes unprocessed image are unique by many ways like clarity, distance from earth, area which cover, particular purpose for remote sensing. Secondly, raw data or unprocessed data is signal sent by the satellite to ground station and ground station archive in their computer which means that computers are the medium of storage only and the signal is not readable in material forms.  Thirdly, satellite image are not product because it is sensed by satellite and product of the space objects not the human being. Fourthly, unprocessed data has no intervention by human being for if there would be intervention, it would come across as processed image. Now going by this analysis we can say that unprocessed data does not fulfil the basic criteria for getting copyright protection. Even national legislation does not protect raw data which are updated according to international intellectual property conventions.[17] In fact no legal protection is available to raw data. In U.S.A. unprocessed data are controlled by satellite operators.[18]  At the beginning of commercial use of the satellite image all major space agency such as NASA, NOAA, EOSAT, Franc CNES SPOT IMAGE, Japan NASADA, Canada CSA/RSI Europe ESA, signed[19] MOU or agreement  with their respective  partner/ costumer and included various clause to protect their prosperity interest. For instance, when EOSAT (Earth Observation satellite Company) start functioning it singed MOU with ground station who receives signals and directs them to design and implement a data management plan that it was subject to approval from EOSAT. [20]  Other agency also singed MOU with the ground station and their customers. In case of Japan, national NASAD (National Aeronautics and Space development Agency) specifically stated that copyright protection would remain with NASAD and directed the local agency to refrain from registration or attempt to register any intellectual or industrial property right including copy right or patent. NASAD give only one right to local agency that they have right to analysed information which means that the propriety right depended on the processing and interpretation of data[21]. There was a request to the local agency to not disclose commercial, financial, scientific and technical information under the agreement.

European Space Agency mentioned in its MOU that contracting partner acknowledged the copyright of ESA under terms of agreement and gave right to local partner that they can put their copyright mark if they contribute, or analyze information further and all distribution of data would be done only under ESA license.[22] French space agency specified clearly that copyright mark must be on all data and trade mark logo must be affixed to all data but it also gave discretion to local partner to co affixed his own logo in case of any processing.[23]

These arrangements were made to protect data obtained by the satellite because there is no specific regulation relating to unprocessed data protection. We can say that these MOU and agreements are not reliable tools to protect intellectual property right. These arrangements can be made only for time being but not for long time because these arrangement raise many questions, such as ambiguity of contract, jurisdiction of court, interpretation and monopoly of satellite operators. Further this kind of arrangement cannot g on for long due to the increasing number of private and government entities entering in the remote sensing field.

We know that there is problem in the protection of raw data which is received and stored by ground station commonly known as database. Database has no precise definition and in general it is an organized collection of data which is electronic in nature.[24] In USA under the Copyright Act, databases are protected by copyright but copyright protection is available only for compilation not for the data.[25] But European Union has passed Directive 96/9/EC to solve problem of database protection. It provides two type of protection- firstly, copyright protection and secondly, sui generis specific to database. It defines database as “collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”.[26] This directive simply gives copy right protection to database as it mentions under Article 3(1) “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection”. It further provides that Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.”[27] Satellite image as unprocessed data are protected. Article 4 of the directive also recognizes legal person and states that “The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Member States so permits, the legal person designated as the right holder by that legislation.”[28] At the same time it gives right to database holder to have exclusive right on database and the right to authorize[29]:

  1. Temporary or permanent reproduction by any means and in any form, in whole or in part.
  2. Translation, adaptation, arrangement and any other alteration.
  3. Any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the right holder or with his consent shall exhaust the right to control resale of that copy within the Community.
  4. Any communication, display or performance to the public.

The database directive is the regional attempt to protect database.

International Obligation and Copyright

All treaty and principle which are adopted by United Nations are based on the mandate of “benefit of all mankind” and on the other hand private investor and corporations enter into this area for their benefit. This calls for harmonization of the business interest, legal interest, and legal obligation of the country so that world can be benefited from remote sensing.

Treaty on principle governing the activities of states in the Exploration and use of outer space, including Moon and Other Celestial bodies, mandates for “recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful propose”[30]. All contracting states are bound by treaty to use outer space for all mankind and state is under obligation to share benefit of outer space with other nations especially with developing countries. Now private entity are entering in the outer space activity for their profit thus it is the duty of nations to enact such regulation which can fulfill business right of the private entities. As for example, when United States commercializes remote sensing it made it clear that private parties were supposed to “make raw data available to all user on nondiscriminatory basis. [31] It is a prerequisite condition for operation of remote sensing.[32] By this way United States fulfilled its international obligation and also created open opportunity for private investors.

United Nations adopted Principle relating to remote Sensing of the earth from outer space and Principle II of it provides that “remote sensing activities shall be carried out for the benefit and the interest of all countries, irrespective of their degree of economic, social, or scientific and technological development, and taking in to particular consideration the needs of the developing countries”. Further Principle 14 states that, “In compliance with article VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, States operating remote sensing satellites shall bear international responsibility for their activities and assure that such activities are conducted in accordance with these principles and the norms of international law, irrespective of whether such activities are carried out by governmental or non-governmental entities. This principle is without prejudice to the applicability of the norms of international law on State responsibility for remote sensing activities”[33]. This principle makes it clear that these principles apply equally to government and non government organization. It is would be worthwhile for nations if they legislate balancing legislation so that business right and intellectual right could be preserved and remote sensing can benefit all countries and human being regardless of their economic capacity. Problem of copyright can be solved by the harmonization of law as for example U.S.A recognized the doctrine of fair use. Copyright protection is given under such limitation such as fair use or fair dealing. The doctrine of fair use is recognized by copyright law and it balances the right of copyright owner and societal interest. The Doctrine allows a person to use copyright protected documents under certain circumstances. Section 107 of U.S. Copyright law recognizes doctrine of faire used[34]. Likewise Indian copyright Act also recognizes this doctrine in the form of fair dealing[35].  But problem is that Copyright Acts do not protect data bases by Copyright Act in India, so it can not protect raw data or unprocessed data of remote sensing and in U.S  only compilation of raw data are protected. If we could make harmonization in existing law then we could be able to protect Satellite image whether it is processed or unprocessed image.

Indian statutes on protection of satellite image

Satellite image which are sensed by Indian satellite are sold by Antrix Corporation Limited. Antrix Corporation Limited was incorporated in 1992 and it is a marketing division of ISRO. Antrix is under the administrative control of the Department of Space of Government of India[36]. Government of India has adopted Remote Sensing Data Policy 2011 for data management and for data acquisition/ distribution from Indian satellites[37]. It stated that department of space (nodal agency) will be sole and exclusive owner of the data collected by the Indian Remote satellite and All users will be provided with only a license to use the said data, and add value to the satellite data.[38] Policy also fulfilled India’s international obligation as it stated that “All data of resolutions up to 1 m shall be distributed on a non-discriminatory basis and on “as requested basis”.[39] The policy does not speak specifically on copyright issue of the remote sensing but it says that “……. sole and exclusive owner of all data ……..” [40] will be the Department of Space. It is not clear that over which data it will have exclusive right i.e. processed or unprocessed.  NRSC (National Remote Sensing Center) is the body which decides term and condition for use of remote sense data and deals with sale of data agreement[41]. Foreigner customers can purchase remote sense data through Antrix. Antrix is the competent authority to grant license to foreigner customers.

Since India is entering in the remote sensing market and there are many other private companies which are providing such services to their customer, there are great chances of violation of copyright of remote sensing image which are sensed by the Indian satellites. On Copyright issue the governmental policy is not clear and it varies from customer to customer. This situation raises the question as to on what condition remote sensing image can be used and what right will be transferred to customer.  There are several legal issue that need to be solved for smooth development of Indian space program. Remote sensing policy does not make differentiation between unprocessed data and processed data. Government of India should adopt a policy which can clarify this issue i.e., policy regarding processed data, (its intellectual property right and its related right ownership of the intellectual property right, extent of transfer of priority). and unprocessed data or raw data (protection of raw data, copyright issue of unprocessed data), if customer process the data what right they would be entitled to,  for example, can they use their copyright mark as exclusive  right or would the original producer of unprocessed data would have any right.

Conclusion and Suggestions:

Remote sensing needs huge investment and many countries investing in remote sensing are not only government agency but also private corporations which calls for appropriate legal protection available to them so that they can benefit from the business and make contributions in development of remote sensing. Here are some suggestions for copyright protection:

 1.Countries should adopt such legislations which can protect satellite images similar to the one European union has adopted which protects copy right of raw data and gives owner the right to dispose in similar ways  as the owner of copyright.

2.Since there are many government agency and private companies entering in Remote sensing, there is an urgent need to adopt a convection which unifies the international legal regime for the protection of intellectual property of remote sensing image both of enhanced data and unprocessed data.

3.There is urgent need to adopt measures which can stop signal piracy of satellite signal because signal can be received by some technological advancement without authorization of operator.

Satellite images or remote sensing data are required for development of all nations, whether they are developing or developed. Since India is one of such nations who is entering into commercialization of space services such as remote sensing, satellite lunching, etc., India needs to have adequate legal coverage in this area. Presently, she does not have the legal regime to protect the benefit derived from remote sensing by preventing unauthorized data receiving and its subsequent theft. India needs copyright protection to protect not only satellite image but also raw or unprocessed data. The Data Protection Bill 2006, which could not be passed, does not cover satellite unprocessed data. There is immediate need for a suitable legislation in this area.

Bibliography:

  1. Treaty on Principle Governing the activities of States in the Exploration and use of Outer Space, including Moon and Other Celestial bodies
  2.  Principle Relating to Remote sensing of the Earth from Outer space, 1985
  3. Berne convection 1971
  4. Land Remote Sensing Commercialisation Act 1984
  5. U.S Copyright Act of 1976.
    1.  Database Directive, Directive 96/9/ec of the European parliament and of the council . 1996
    2. Indian  Remote Sensing Data Policy 2011
    3.  Indian copyright  Act 1957
    4. Laurence G.C. Kaplan and Joseph R. Bankoff, Of satellite and copyrights problems of overlapping and choice of law, 7 Emory Int’l L. Rev. 757 1993
    5. J, Richard West , Copyright protection for Data obtain by remote sensing: how the Data enhancement industry will ensure Access for Developing countries, 11 Nw. J. Int’l L. & Bus. 403 1990-1991
    6. Patrick A. salin, Proprity Aspect of commercial remote- sensing image, 13 Nw. J. Int’l L. & Bus. 349 1992-1993
    7. Martha mejia-kaiser , copyright claims for meteosat and landsat images under court challenge, 32 j. Space l. 293 2006

Website:

  1. www.isro.org
  2. www.antrix.gov.in
  3. http://www.wipo.int/porta
  4. http://copyright.gov/title17/

[1] Treaty on principle governing the activities of states in the Exploration and use of outer space, including Moon and Other Celestial bodies

[2] J.Richard west, Northwestern journal of international law and Business, 1990

[3]  16th  civil chamber, 16 0 33-89, May 30, (1989), sited in    J. Space L. 293 2006, page no, 295,

[4] Ibid, page no. 301

[5] M Sat Editions v. Rubie’s France, N. 217, Role General n. 99 002123 (Oct. 4, 2001) sited in, J. Space L. 293 2006

[6] Infra

[7]  Principle Relating to Remote sensing of the Earth from Outer space, 1985

[8] Principle (1) (a) and (b) Principle Relating to Remote sensing of the Earth from Outer space, 1985

[9]  Art,2 (1) Berne convection 1971, The expression ”literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatic-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

[10] Supra

[11] Wipo/copyright

[12] J, Richard West. 11 Nw. J. Int’l L. & Bus. 403  1990-1991

[13] supra

[14] Land Remote sensing commercialisation Act 1984

[15]  Patrick A. Salin, 13 Nw. J. Int’l L. & Bus. 361 1992-1993

[16] ibid

[17] ibid

[18] ibid

[19] ibid

[20] Land sat downlink agreement.

[21] Supra no 14 page no 366

[22] Ibid, page no 365

[23] Ibid page no 366

[25]   copyright protection in a compilation focuses on the original ways in which the preexisting material or data    are selected, coordinated, or arranged,” and not the data itself,  The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material  http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node5.html,

[26] Article 1(2) of DATABASE DIRECTIVE, DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL . 1996

[27] Article 3(2) of DATABASE DIRECTIVE, DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL . 1996

[28] Article 4(1) of the DATABASE DIRECTIVE, DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL . 1996

[29]  Ibid, Article 5

[30] Preamble of Treaty on principle governing the activities of states in the Exploration and use of outer space, including Moon and Other Celestial bodies.

[31]  Section 401(B) (2)  of LAND REMOTE-SENSING COMMERCIALIZATION ACT OF 1984(July 17,1984 PL 98-365)

[32] Ibid , section 401 (A)

[33] Principle relating to remote Sensing of the earth from outer space

[34] Section 107 of copyright Act,  Limitations on exclusive rights:

Notwithstanding the provisions of  section 106 and 106A the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1)     the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)     the nature of the copyrighted work;

(3)     the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)     the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[35] Section 52 of  Indian copyright  Act 1957 ,

(1) The following acts shall not constitute an infringement of copyright, namely:—

(a)  a fair dealing with a literary, dramatic, musical or artistic work, not being a  computer   programme, for the purposes of—

(i)  private use, including research;

(ii)  criticism or review, whether of that work or of any other work

[37] Remote Sensing Data Policy 2011/ available on http://www.isro.org.

[38]  Policy 1 (B) of Remote Sensing Data Policy 2011

[39] Ibid ,  4 (a)

[40] Supra , note 37

[41] Supra 73 , policy 4 (B) (4)

By:-Shailendra Kumar

PhD Scholar West Bengal National University of Juridical Sciences Salt Lake City Kolkata

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