Astronauts are inherently insane. And really noble. ― Andy Weir, The Martian
Lexology reports the interesting story of “astronaut” Samantha Cristoforetti, who works on the International Space Station (ISS), and who shared on twitter her reenactment of a scene from Stanley Kubrick’s film “2001: A Space Odyssey” . In the scene in the film the flight attendant climbs the wall of the spaceship while defying the laws of gravity and goes up the wall of the spaceship contrary to the laws of gravity. Astronaut Cristoforetti was dressed in a white costume – same as the astronaut performing the act in the film and played Strauss’s Blue Danube waltz also duplicating the background music in the movie. Arguably, Cristoforetti created an incontrovertible likeness to the movie giving twitter users the illusion that they were watching the clip from the movie.
This brings to bear the inevitable question whether astronauts – whoever they might be, as the conclusion to this article argues – when they are away from Earth can infringe copyright laws that may apply on terra firma merely because they are not walking the Earth at the time of the infringement.
Lexology says: “ The astronaut might have infringed intellectual property by playing a scene from a movie in real life, although this is subject to debate. But the question is – how do intellectual property rights apply to astronauts who have left the Earth?
Flying off the Earth and even landing on another planet does not change the legal status of a person. Each astronaut continues to be a citizen of his/her state and remains under its jurisdiction. It means that, as a rule, issues such as citizenship, civil or criminal liability will be resolved in accordance with the national legislation of a particular state”.
From a legal standpoint, it could be argued that the answer lies in the International Space Station Intergovernmental Agreement (IGA) which in Article 5 (2) says that pursuant to the Outer Space Treaty and the Registration Convention (as relevant), each Partner in a space program must retain jurisdiction and control over the elements it registers in accordance over personnel in or on the Space Station who are its nationals. The exercise of such jurisdiction and control must be subject to any relevant provisions of the IGA, the MOUs (Memoranda of Understanding) , and implementing arrangements, including relevant procedural mechanisms established therein.
Accordingly, being an Italian citizen astronaut Cristoforetti is subject to Italian jurisdiction since the Berne Convention in its lex loci protection rule, stipulates that a dispute arising from a contingency envisioned as above must be governed by the laws of the country where the protection is claimed, in this case – most likely, both Italy and The United States. In essence, the lex loci protection rule, as adumbrated in the Berne Convention for the Protection of Literary and Artistic Works – an international agreement that governs copyright law – says that the extent of protection and the means of redress afforded to the author to protect their rights must be governed exclusively by the laws of the country where protection is claimed.
Another consideration – internet law – may also place such a dispute within the jurisdiction of the United States which is the lex loci headquarters of Twitter. In any event, the IGA talks of jurisdiction and control by a State and does not address liability directly.
The relevant provision of the Outer Space Treaty (OST) of 1967 that the IGA refers to is Article VIII which says inter alia that State Party to the Treaty on whose registry an object launched into outer space is carried is required to retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Since the ISS is a joint project between five space agencies: NASA (United States), Roscosmos (Russia), JAXA (Japan), ESA (Europe), and CSA (Canada), it is not registered to any country, but is governed by the IGA which establishes the legal framework for the ISS and defines the rights and obligations of the partners involved in the project. Therefore, Article VIII of the OST would not apply in this instance although the IGA refers to it.
Article II of the Registration Convention, which the IGA refers to, says that when a space object is launched into Earth orbit or beyond, the launching state is required to register the space object by means of an entry in an appropriate registry which it must maintain. Each launching state must inform the Secretary-General of the United Nations of the establishment of such a registry. Again, this provision would not apply to the ISS and activities therein.
Therefore, as a single point of reference, Article 5(2) of the IGA remains applicable. This provision refers to “ retention of jurisdiction and control over the elements it (the State of Registry) registers in accordance over personnel in or on the SWas There a cpace Station who are its nationals”. As for the reference to the Berne Convention, Italy is one of the 177 countries that have ratified the treaty and therefore its provisions can be invoked by an author who has a claim in copyright infringement on the grounds that it was an Italian who performed the act.
Was There Copyright Infringement?
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. This means that the rights afforded to the copyright holder, such as the exclusive use of a work for a set period of time, are being breached by a third party. The United States Copyright Office defines copyright infringement as such: “As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner”.
One may argue that Samantha Cristoforetti’s act was a mere imitation of the original scene. Generally, it is considered that if a person imitates an original scene, it may be considered a copyright infringement if the scene is protected by copyright law. However, whether or not imitation constitutes infringement depends on the specific circumstances of the case, such as the extent of the similarity between the original and the imitation, the purpose of the imitation, and the amount of original material used.
The copyright owner of the movie 2001: A Space Odyssey is Warner Brothers. Therefore, if one were to interpret the IGA, accountability would seemingly devolve upon Italy being the Party having “ jurisdiction and control over the elements it registers in accordance over personnel in or on the Space Station who are its nationals”. The United States, as a jurisdiction, could be dragged in with the involvement of Twitter. Additionally, Warner Brothers, founded in 1923 has its headquarters in Burbank California which makes the United States a possible jurisdiction on another count as well.
All this leaves one with the time worn conundrum as to the legal status of an astronaut. At space law, there is no such being as a “person” in outer space. There are only astronauts and personnel. The Outer Space Treaty stipulates that State parties to the Treaty must regard astronauts as envoys of mankind in outer space and must render to them all possible assistance in the event of accident, distress or emergency landing on the territory of another State party or on the high seas. As to who is “an envoy of mankind” and whether the term refers to an ambassador (with full immunity) has been clarified by Professor Bin Cheng who said that it is only a figure of speech which has not been repeated in any United Nation’s documentation.
The perceived inadequacy of definitive identification at international law of an astronaut and his conduct in outer space leaves one destitute of clarity, wondering whether an astronaut is a non-person from a legal sense and is therefore outside the realm of local and international law. The only indication of who an astronaut is, is couched in qualifications and experience and not in legal status, as for example Order No 8800.2 of the Federal Aviation Administration (FAA) of the United States which says inter alia that for a person to be called an astronaut he/she should: meet the requirements for flight crew qualifications and training under Title 14 of the Code of Federal Regulations (14 CFR) part 460; demonstrate flight beyond 50 statute miles above the surface of the Earth as flight crew on an FAA/AST licensed or permitted launch or re-entry vehicle; and demonstrate activities during flight that were essential to public safety, or contributed to human space flight safety.
It is interesting to see the fall out, if any, of the circumstances and principles addressed in this article.