Copernicus Sentinel-2 imagery of the Strait of Gibraltar. Credit: ESA via Flickr

With President Joe Biden in the Oval Office, the United States is set to reestablish its global influence on environmental and climate studies for the coming years. The renewal of the country’s participation in the Paris Agreement is among the clearest examples of the distancing of the Biden administration from former President Donald Trump’s approach to the subject. This newfound focus should result in increasing investments into space-based Earth observation activities, mostly carried out by the National Oceanic and Atmospheric Administration (NOAA), as well as private actors.

Copernicus Sentinel-2 imagery of the Strait of Gibraltar. Credit: ESA via Flickr

Through constant investments and technological development, space-based activities have become more accessible to a wealth of emerging entities, as well as having increasingly become a critical tool for a wide range of endeavors. Among these, space research, specifically Earth observation (EO) carried out by public and private actors alike, has been of fundamental importance for climate change studies for decades. Most notably, space-based research activities spurred the adoption of the Montreal Protocol in 1987 regulating the phasing out of substances responsible for the depletion of the ozone layer.

The evolving quality and quantity of Earth observation data enables an ever-increasingly profound knowledge of the climate crisis, enhancing the efficacy of mitigation strategies as well as the management of risk and natural or human-made disasters. Access to satellite imagery offers a unique and game-changing advantage compared to data collected in situ: the capacity to build data sets with decades worth of observations while providing constant, up-to-date, and reliable information.

The environmental emergency, while having severe global effects, will not affect all states equally. Poorer, less developed countries are expected to face severe challenges directly related to climate change, and will experience the large majority of climate-induced human mobility, be it internally displaced people or climate migrants. Open Data policies promoting free and open access to Earth observation data and information are an important tool to guarantee access to satellite imagery to those states which do not yet possess the capabilities for independent access to space. This is especially true for data related to the causes and effects of climate emergencies, such as the Essential Climate Variables identified by the Global Climate Observing System. Open Data principles not only greatly enhance the mitigation strategies of less-developed countries, but would significantly further their risk and disaster management.

On the one hand, the promotion of Open Data would fit well within the tenets of the United Nations Framework Convention on Climate Change of 1992. This instrument of soft law established the common but differentiated responsibilities of states in the fight against the environmental emergency, as well as the commitment to promote the “full, open and prompt exchange of relevant scientific, technological, technical, socio-economic and legal information related to the climate system and climate change.” On the other hand, Open Data principles help to maximize the value of Earth observation activities, both for the purposes of climate action and in other sectors such as agriculture or maritime management. The ensuring of data reusability, in the form of derivative or integrative works by independent users with access to data sets, greatly expands upon the immense potential of space-based activities.

Several international initiatives have been established in order to encourage Open Data policies, pushing free, open, and unrestricted access to data, data sets, and processed information for the purposes of risk management and bettering mitigation strategies. The most notable examples are the Global Earth observation System of Systems (GEOSS), the International Charter Space and Major Disasters, as well as the EU’s Copernicus. These have all looked to further Open Data principles by promoting dissemination of data created by a multitude of space-based activities, with no restrictions on the location of the end users or whether they are public or private operators.

Open Data policies have proved successful in not only enhancing our understanding of environmental crises as well as our disaster management response, but have also allowed significant improvements in a multitude of productive sectors such as agriculture and urban management. In addition, the versatility and potential for the integration of multiple data sources enable Open Data principles to be well-suited for the support of the UN Sustainable Development Goals. Climate action (Goal 13) is an obvious topic; others such as Cities (Goal 11) and Life on Land (Goal 15) will also necessarily depend on EO data and information. Despite these successes and its great potential, two primary challenges restrict the effectiveness of Open Data: the practice of “shutter control” and Intellectual Property Rights (IPR).

Copernicus Sentinel-1 images of the Gulf of Suez showing ship accumulation due to the Ever Given container ship blocking the canal. Credit: ESA via Flickr

“Shutter control” is effectively the practice of restricting the dissemination of data (or degrading its quality) which has been most commonly attributed to states. Other than IPR, among the most common reasons for the limitation of access to data are considerations regarding international relations and foreign policy, national security, defense, and national legislation. Open Data initiatives such as GEOSS and Copernicus do include allowances for such restrictions, as the former identifies international instruments, national policies or legislations as valid exemptions, while the European Commission restricts access to and dissemination of Copernicus data where it “presents an unacceptable degree of risk to the security interests of the Union or its Member States” (EU Regulation 1159/2013).

While the implementation of such restrictive means has ebbed in an encouraging international trend, imagery and information regarding certain areas and regions are still protected under national legislations. Examples abound: the U.S. and Germany each have specific legislations allowing the restriction of any data considered sensitive or damaging to their respective interests. The overzealous application of these instruments prevents the full interoperability of (EO) data and limits the development of international collaboration; efforts of international frameworks and research institutions have however favored the emergence of best practices and reinforced the adoption of Open Data as a fundamental rule rather than an exception.

IPR poses a more daunting challenge. Definitions of what Earth observation data is copyrightable differ depending on the jurisdiction assessed: the criterion of creativity is prevalent in civil law systems, while common law (U.S. & UK) often defines an “original” work as one borne of labor, skill, and effort. Exemptions to copyright also differ between jurisdictions, as do considerations on whether data sets can be copyrighted even if the individual “raw” data cannot (the so-called sui generis database protection active in the EU).

These brief snapshots serve to illustrate the legal uncertainty surrounding different approaches to copyright legislation. The legal interoperability of EO data suffers significantly due to the uncertainty through which users must navigate. The sheer amount of data which users handle results in severe complications as to the correct identification of its legal status, especially when the information is obtained from a multitude of sources.

A standardized system of licenses, providing for an easily accessible and reliable mechanism to ensure high degrees of legal interoperability is warranted. While instruments such as Creative Commons may act as short-term solutions, standardization of licenses specific to climate data and information would yield long-term benefits for legal interoperability of data-sharing regimes. Clearly, the expectation that private enterprises investing large sums in EO should relinquish all or part of their rights to their products without remuneration is fanciful. Public and international investments for specific EO data might thus promote a top-down approach for the establishment of best practices, with an increasing number of states looking to establish Open Data principles as default for publicly owned data.

Marco Borghi recently completed an advanced master’s in space law and policy at Ku Leuven in Belgium, and is currently collaborating with the Space Economy Evolution Lab at SDA Bocconi in Italy.

This article originally appeared in the April 19, 2021 issue of SpaceNews magazine.

Marco Borghi is a graduate of Durham University and the London School of Economics, specializing in History and International Relations. He has recently completed an Advanced Master's at KU Leuven (Belgium) majoring in Space Law and Policy, and is currently...