There are two notable features about an entertaining tongue-in-cheek post which was published by the 1709 Copyright blog on 13 March based on well-known singer Sarah Brightman’s announcement that not only is she to become the first professional singer on board the International Space Station but that she is planning to sing a song in Space accompanied by an Earth-based orchestra: (1) the article is about copyright law and it is funny, and you cannot often say that; and (2) it touches on the interesting issue of rights in copyright works created in outer space and, once again, you cannot often say that. I comment on copyright issues in Space briefly below, but first, set out in italics, is the post from the anonymous contributor to the 1709 blog:

AND FINALLY – AND coincidently set against the backdrop of the news that Sarah Brightman is working with Andrew Lloyd Webber on new material to perform in space – this from an anonymous contributor who The CopyKat shall name only as ‘Major Tom’….. ‘Stimulated by Sarah Brightman’s intention to be propelled into space in September, the EU has launched a Public Consultation into the collective administration of rights in extra-terrestrial broadcasting. “We have asked her to delay her flight for an indefinite period – possibly several aeons – while we consult and decide on the cross-planet implications of the licensing of her performance’, said an EU spokesperson. Elsewhere (George) Lucas Grange, supremo of Universal Music, said ‘We are called Universal for a good reason. We have an exclusive arrangement with Ms Brightman and her ex-husband, with his Soyuzful Music Corporation, to handle all the publishing and artistic rights. People laughed at us when we signed everything for the Universe, but they are now laughing on the other side of their galaxies.’ This claim was dismissed by Sergey Brin. ‘Ms Brinman’s voyage will take place in Google Rocket, propelled by Google Zoom. Her Google Watch will stream her singing via Google Play and Universal can go and sing for their royalties. Her destination was Google Moon, but if she fails in her mission then she and the royalties will fall into a Google Black Hole.’ Speaking from a black hole in Brussels, an EU spokesperson stated that all modalities would be taken into consideration. The CEO of a central European collecting society, who wished to remain anonyme, said ‘all public performance royalties from Ms Brightman’s performances that cannot be distributed (and that means all of them) will be sucked into our black box, as is customary’.

Put simply, copyright on Earth is organised along a territory-based approach. Rights in copyright works are derived through the nationality or residence of the author or through the country of first publication of the copyright work. Protection is given to works of nationals of “other” member states through International Conventions such as the Berne Convention and the Universal Copyright Convention. National laws do not specifically address the issues raised by the creation or use in space of copyright works and existing national copyright laws must be adapted to apply to issues such as subsistence or exercise of the rights where possible.

An obvious question is which jurisdiction’s laws will apply? National jurisdiction does not usually apply to those choosing to create works (or indeed sing songs) on an extra-terrestrial basis. Curiously, if and when Ms Brightman performs from the International Space Station, she will not be the first to do so; Canadian astronaut Chris Hadfield’s rendition of David Bowie’s “Space Oddity” has already set a precedent there. Commander Hadfield had obtained the necessary permission to record and distribute the song and thus became the first Canadian astronaut singer/songwriter to go global and beyond with a Bowie cover version.

In relation to the International Space Station (ISS) the position is simplified because it was split up into several “elements” under the respective controls of the United States, the European Space Agency consortium, Russia and Japan. An international agreement is in place which states that applicable laws are dependent on in which bit of the ISS the “event” takes place. So for example, an infringement in the element under the jurisdiction of the USA could amount to an infringement under the laws of the USA, a situation broadly analogous to the position of ships on the high seas.

Creating a copyright work in Space will, in effect, be no different from creating something on Earth because it will be protected according to the same criteria – is the work fixed, is it original and will it qualify according to nationality of the author or the place of subsequent publication? Works of nationals of the Berne Convention are protected wherever created and that includes Space.

There is a difference of course between “performing” the copyright work and making copies which are made available back on Earth. Assuming Ms Brightman elects to perform a song in which she owns the copyright there would not be a problem. Performing someone else’s song privately in Space or anywhere else will not infringe the rights in it. However, if other people are present at the performance, and we have to assume that the famed soprano will not be alone on the space station, this could amount to a public performance. However, the first time the rendition is captured and streamed in a particular country it would be communicated to the public and could comprise a copyright infringement in that country.

But what if a performance takes place, or unauthorised copies are made of a copyright work without authorisation on Mars for example? The owner of the copyright would still potentially have a remedy if the performance was recorded and streamed in a country on Earth because a harmful event would be taking place in the country, but there would be no infringement on Mars because no copyright law currently applies there. So if there was a ready market on Mars for “I lost my heart to a Starship Trooper” bootleg copies could be readily made and sold there.

This all may be hypothetical and rather fanciful now, but it will certainly not be in the not too distant future when many people could be stationed in Space. Indeed these issues are increasingly coming into focus because of the growing amount of material such as video footage and data created by landed objects on Mars and other objects in space. There is a challenge relating to increasing human activity in Space because it is creating all kinds of difficult and interesting questions not least for IP lawyers such as subsistence of rights, jurisdiction, ownership, and infringement.

If you wish to discuss any of the issues raised in this article please contact Simon Miles or any member of the Edwin Coe Intellectual Property team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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