Copyright oddities in space

Chris Hadfield captured the heart of 'Space Oddity' and 22 million YouTube hits. Reimagineer looks at questions about I.P. in space.

But when the man fell to Earth in a neat and safe descent soon after his five-month stay in orbit, did he face the music from copyright police?

His five-minute video had the potential to create a tangled web of intellectual-property issues. How does copyright work in space be it in close earth orbit or as a man on Mars?

Commander Hadfield was only 250 miles (400 km) up, so he was still subject to terrestrial intellectual-property regimes, which would have applied even if he had flown the “100,000 miles” mentioned in the song’s lyrics, or millions of kilometres to Mars.

The song “Space Oddity” is under copyright protection in most countries, and the rights to it belong to Mr Bowie. But compulsory-licensing rights in many nations mean that any composition that has been released to the public (free or commercially) as an audio recording may be recorded again and sold by others for a statutorily defined fee, although it must be substantively the same music and lyrics as the original.

Ground control to Major Tom

But with the ISS circling the globe, which jurisdiction was Commander Hadfield in when he recorded the song and video? Moreover, compulsory-licensing rights for covers of existing songs do not include permission for broadcast or video distribution. Commander Hadfield’s song was loaded onto YouTube, which delivers video on demand to users in many countries around the world. The first time the video was streamed in each country constituted publication in that country, and with it the potential for copyright infringement under local laws.

Commander Hadfield could have made matters even more complicated by broadcasting live as he sang to an assembled audience of fellow astronauts for an onboard public performance while floating from segment to segment of the ISS.

That is because the space station consists of multiple modules and other pieces (called “elements”) under the registration of the United States, the European Space Agency (ESA) consortium, Russia and Japan although NASA has been it’s owner since 2005.

The video was transmitted to Canada (probably through ground stations around the globe), where Mr Bowie’s former bandmate Emm Gryner added a piano accompaniment and others edited and produced the final product. But recording a private performance does not violate any laws; a violation only occurs if the material is publicly distributed. Had the song been broadcast from space, Mr Bowie’s lawyers would have been entitled to seek redress in Canadian, American and Japanese courts, in addition to any objections they might have raised based on YouTube views elsewhere.

If Commander Hadfield’s employer, the Canadian Space Agency, had been deemed to authorise the recording, transmission and distribution of the song while he was on the clock, Commander Hadfield might be off the hook for damages. But he would also, under Canadian copyright and employment rules, retain ownership in the work unless he had specifically assigned it to the CSA.

Chris Hadfield sings Bowie's Space Oddity

Chris Hadfield in space

In this particular case the matter is straightforward because Commander Hadfield had obtained permission to record and distribute the song, and production and distribution was entirely terrestrial. Commander Hadfield and his son Evan spent several months hammering out details with Mr Bowie’s representatives, and with NASA, Russia’s space agency ROSCOSMOS and the CSA.

The copyright issue may seem trivial, but the emergence of privately funded rocket launches, space tourism and space exploration hold the potential for more substantive disputes. If an astronaut were to travel to the Moon, an asteroid or Mars on a privately funded spacecraft, the situation would become knottier still, because the United Nations Outer Space Treaty of 1967 applies to countries, not companies or private individuals.

J.A.L. Sterling, a London-based expert on international copyright law, anticipated all this in a 2008 paper, “Space Copyright Law: the new dimension”, in which he lists dozens more potentially problematic scenarios that could arise, some seemingly risible at first. He asks what would have happened if, on a moon landing broadcast live by NASA across the world, two astronauts were overcome by emotion and burst into song—one covered by copyright. NASA might still be engaged in litigation 40 years later.

Sterling considers space travellers who put copyrighted material from Earth on a server reachable from space, or engage in rights-violating “public performances” for crewmates. If the first person to walk on Mars decides to launch into “A Whole New World”, the rights will need to have been cleared with Disney first.

- The Economist

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