Regulation of Remote Sensing of the Earth from Space: International Practice

Popova Svetlana Mikhailovna PhD in Politics Associated professor, Center for Comparative Law, Shenzhen MSU-BIT University 518172, China, Guangdong Province, Shenzhen, International University Park Road, Dayun New Town, Longgang District, 1 condrieu2020@gmail.com Other publications by this author     Uvarov Valentin Borisovich CEO, SR Climate Monitoring System 115516, Russia, Moscow, Moscow, Novy Arbat str., 21, office 2401 uvarov.valent@yandex.ru

Yanik Andrey Aleksandrovich PhD in Technical Science Leading Research Associate, Institute for Demographic Research of the Federal Center of Theoretical and Applied Sociology of the Russian Academy of Sciences 119333, Russia, g. Moscow, ul. Fotievoi, 6, korp.1, of. 1 cpi_2002_1@yahoo.co.uk Other publications by this author

Introduction

The creation of legal incentives for the development of various areas of space activity is relevant in modern conditions, when space technologies are increasingly becoming one of the tools for solving "terrestrial" tasks, including those related to the need to constantly observe and evaluate the processes taking place on the surface of the planet and in its atmosphere.

Of particular interest are the technologies of remote sensing of the Earth from space (hereinafter – remote sensing), which are used to obtain up-to-date and reliable information about the surface of the planet and analyze its physical characteristics. Remote sensing data is needed for mapping the Earth's surface and monitoring changes in its condition; for obtaining geodetic, geological, seismological information; for exploration and evaluation of mineral deposits; conducting hydrobiological studies; prevention and liquidation of emergency situations, disaster management; management of natural resources (forest, water, land, etc.); and also in other areas.

The number of intermediate and end users of remote sensing data in the public, business and public sectors is constantly growing. This is due to the fact that the paradigm of working with remote sensing data and spatial information in general is changing: these resources are increasingly being used "not only for display and visualization, but also for integration with other data sources, data analysis, modeling and development of management decisions"^{[1, p. 72]}.

Earth remote sensing technologies are of particular importance in the context of solving the problems of the global climate agenda, including the transition to low-carbon and carbon-neutral models of economic development ^[2-6].

It is not surprising that the remote sensing market is becoming increasingly attractive for public and private entrepreneurship. According to experts of the international market research company Grand View Research, Inc., the global market for remote sensing technologies will grow from 2020 to 2027 with a cumulative average annual growth rate (CAGR) of 11.6% and will reach more than $29.6 billion by 2027 (in 2020 it amounted to $13.8 billion) ^[7]. In relation to Europe (EU27), market growth is projected at an average annual rate of 8.8%. However, in critical sectors of the economy, such as IT technology, the Internet of Things, agriculture and the living resources market, the average annual growth rate will exceed 13% ^[7].

And although in the future the overwhelming market share (about 60%) will continue to be relatively inexpensive passive remote sensing technologies, active remote sensing technologies are leading in terms of growth rates. Thus, it is predicted that by 2027 the market for active Earth observation from space will grow by 2 times ^{[7, p. 14]}, and the volume of the lidar market by 2030 will grow by almost 5.6 times (from 0.96 billion US dollars in 2019 to 5.35 billion US dollars) with an average annual growth rate (CAGR) in 16.9% ^[8].

The key factors contributing to the growth of the market for Earth remote sensing technologies from space are an increase in the number of Earth observation projects, the expansion of the use of remote sensing data for defense purposes, the introduction of precision farming technologies ^[9], the development of a "green economy".

But despite the fact that the market for remote sensing technologies is developing rapidly, its explosive growth is hindered by the need for large initial investments in the production of numerous components. Market participants need to simultaneously solve several tasks at the start – not only to master the production of components necessary for the implementation of remote sensing projects, but also to ensure the licensing of equipment and encryption of relevant data sets according to strict standards established by regulatory organizations. Strict rules governing the exchange of data and the production of components for remote sensing are the most important factor affecting the prospects for the development of the remote sensing market ^{[10, p. 10]}. In general, resource-intensive projects and cumbersome bureaucratic procedures limit the opportunities for rapid growth of companies in the market.

It is obvious that it is the state of the legal regulation of the remote sensing sphere that plays a key role both for the development of remote sensing at the national level (and, accordingly, for the prospects of using new technologies to effectively solve the tasks of national defense, the climate agenda, the transition to a "green economy", and other issues), and in ensuring the competitive advantages of national companies at the global the market of remote sensing technologies and remote sensing data-based services.

As is known, at the international level, activities in the field of remote sensing are regulated by the following fundamental acts:

-        Convention on the Transmission and Use of Earth Remote Sensing Data from Space (concluded in Moscow, May 19, 1978);

-        Principles on Remote Sensing of the Earth from Space (approved by UN General Assembly Resolution 41/65 of December 3, 1986) (hereinafter – Principles on Remote Sensing from Space 1986).

In particular, the Principles on Remote Sensing from Space of 1986 define the basic concepts (remote sensing, primary data, processed data, analyzed information, remote sensing activities), and also establish the general framework (principles) for the implementation of such activities ("for the benefit and in the interests of all countries", "in accordance with international law, including the UN Charter, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and relevant documents of the International Telecommunication Union")

Special attention in international documents is paid to the issues of access to remote sensing data. For example, the States implementing the remote sensing program are obliged to inform the UN Secretary-General, as well as "to provide, to the maximum extent possible and practicable, (...) relevant information to any other State (...) from among those affected by this program, at his request" (Principle XI). In turn, the probed States should be provided with access to primary and processed data, as well as to analyzed information on a non-discriminatory basis and on reasonable payment terms (Principle XII).

As for the national experience of regulating activities in the field of remote sensing, it is distinguished by a significant variety of institutional and legal approaches.

The analysis of international practice is of not only theoretical but also practical interest, since the Russian Federation is a space power and a key player in the global space market. The increasing knowledge intensity of the state space policy, the imperatives of the climate agenda of Russia, as well as the need to create an independent national space monitoring system in conditions of reduced access to international data make it relevant to study the approaches of other countries to regulating activities in the field of remote sensing from space.

Methods

The source base for the analysis was an array of foreign official sources (normative legal acts, strategies, programs, official reports, other documents related to the so-called "gray literature"), as well as scientific publications related to the issue under consideration. General scientific research methods were used (analysis, synthesis, comparison, hypotheses, etc.), content analysis. formal legal analysis, comparative legal approaches.

Results

The research summarizes and analyzes information concerning institutional and legal approaches to remote sensing regulation in nine countries and three regional integration associations.

Attention was focused on the following aspects:

- the main regulatory legal acts regulating remote sensing;

- institutions involved in the regulation of remote sensing activities;

- availability of licensing procedures and their features;

- approaches to the storage and dissemination of remote sensing data.

Summary information obtained as a result of the analysis of documents is presented in tabular form for ease of review.

Table 1 presents, with separate comments, basic regulatory legal acts and key institutions regulating relations in the field of remote sensing from space at the national level (USA, Canada, Australia, Germany, France, India, Kazakhstan, China, Japan), as well as at the level of regional associations (European Union, Commonwealth of Independent States, Eurasian Economic Union).

Table 1. Institutional and legal structure of the regulation of remote sensing activities in various countries

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Notes to Table 1:

* The State Administration of Defense Science, Technology and Industry of the People's Republic of China is part of the Ministry of Industry and Information of the State Council of the People's Republic of China. Until 2008, the structure was called the Commission for Defense Science, Technology and Industry (Commission for Science, Technology and Industry for National Defense, COSTIND) and was a civil ministry in the structure of the Government of the People's Republic of China (State Council of the People's Republic of China).

** The Commonwealth of Independent States Convention on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes was signed on September 28, 2018 by six CIS States (the Russian Federation, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Tajikistan and the Republic of Uzbekistan), entered into force on May 22, 2019, and is open for accession. The procedure for carrying out joint activities under the Convention is regulated by a separate intergovernmental agreement of the CIS member States, which addresses, inter alia, issues of technology protection, intellectual property rights, information exchange, export control, customs regulation, liability of the parties, and the activities of the Interstate Space Council.

Table 2 provides summary data on the national specifics of licensing procedures in the field of remote sensing (for which types of activities licenses are required, which entities can apply for licenses, what are the terms of consideration and issuance of licenses, and other information).

Table 2. Features of licensing in the field of remote sensing

Table 3 summarizes information on the presence/absence of special centralized remote sensing data storage banks in the States under consideration, as well as on the general principles governing the mode of access to remote sensing data and their dissemination.

Table 3. Features of remote sensing data storage regulation and access to them

Discussion

Modern approaches of states and regional associations to the regulation of relations in the field of remote sensing from space are different, but in general formally fit into the framework of three legal models described by N.R. Malysheva and A.M. Gurova ^[12]:

1) Adoption of special acts regulating remote sensing (special laws on remote sensing, standards, etc.).

2) Remote sensing regulation within the framework of the general law on space activities (norms in the laws on space activities).

3) Relations in the field of remote sensing are regulated by laws and legal acts that are not directly related to space activities (for example, legislation in the field of export control, trade, information, communications, etc.).

The generalization of the practical experience of states also shows a wide variety of organizational schemes for regulating the remote sensing sector, but two key approaches can be distinguished in principle:

1) The regulation of activities in the field of remote sensing is carried out only by state structures.

2) The State establishes the general framework and principles of activities in the field of remote sensing, and specific issues are resolved through self-regulation (in particular, through non-governmental organizations uniting remote sensing stakeholders).

An example of a country with a developed special regulation of activities in the field of remote sensing is the United States. Despite the fact that the admission of private entrepreneurs to this sector began almost half a century ago, and the first act on commercial activity in the field of remote sensing was adopted back in 1984, the state plays a central role in it. As you know, at the very end of the 1970s -1980s, an attempt was made to privatize remote sensing in the United States, since the rapid development of Landsat system applications created the feeling that remote sensing of the Earth could be removed from the jurisdiction of the federal government and become a profitable private sector activity (by analogy with the privatization of the satellite communications system). However, the attempt failed. Despite the fact that private companies have sharply raised prices for remote sensing data (sometimes by dozens of times), they have not become financially stable, since users simply left the market. According to experts, this story has become an example of an inefficient and even harmful policy, as a result of which remote sensing data users and private entrepreneurs who tried to create a new industry suffered (until 1992, no private company dared to apply for a license to operate a commercial remote sensing satellite) ^{[13, pp. 4-8]}.

Currently, many government agencies are involved in the regulation, licensing, and licensing control of remote sensing activities in the United States, requiring entrepreneurs to provide a huge amount of information and capable, in fact, at any time to prohibit the implementation of private remote sensing projects, or to require changes in their interests that can significantly increase the costs of applicants.

For example, in order to obtain licenses for remote sensing activities, the applicant must submit the following blocks of information:

1) corporate information (name, location, all personnel in contact with foreign partners, the owner who owns at least 10 percent of the authorized capital of the applicant, the foreign owner who owns at least five percent, a description of all important contracts, etc.;

2) information about the launch site (launch vehicle, spaceport, launch date, orbit data, etc.);

3) information about the space segment (name and number of the satellite that will carry the remote sensing system, navigation tools, motion parameters, period of operation;

4) information about the ground segment (information collection system, technical details of signal encoding and decoding, etc.);

5) other information (in particular, a description of the plan for the sale or other ways of disseminating information, methods of providing information to governments whose territory is being probed, as well as to any scientific institutions, a plan for providing information to the Ministry of Internal Affairs for posting in the National Archive of Remote Sensing Data).

The information provided is confidential, but within 30 days after receiving the license, the licensee is obliged to submit a brief description of the licensed system for public access.

The current remote sensing control system in the USA is considered extremely cumbersome and outdated today. Critics note that national security considerations combined with insufficient attention to the promotion of commercial remote sensing have created an excessively burdensome and archaic surveillance regime, and the variability and opacity of regulation in the absence of explanations why American private companies cannot use certain opportunities available in other jurisdictions put the United States at a disadvantage in the international remote sensing market ^[14].

In this context, it is worth noting that repeated attempts to liberalize American legislation in the field of remote sensing have not yet succeeded.

For example, in 2017, the bill H.R. 2809 - American Space Commerce Free Enterprise Act of 2017 ^[15] was considered in Congress, which, among other things, was supposed to "embroider" bottlenecks that hindered the development of the commercial remote sensing sector. The key tools are to increase the transparency of government actions and provide private companies with the opportunity to appeal against refusals. For example, a gradual transition from a permissive to an affirmative supervision regime was assumed. And for the Minister of Commerce, deadlines were set for submitting a decision on refusal or approval of an application, if exceeded, it would be considered automatically approved. The bill was approved by the House of Representatives (April 24, 2018), but it was never passed by the US Senate.

In 2019, the Committee on Science, Space and Technology of the House of Representatives of the US Congress introduced a bill with the same name (H.R.3610 - American Space Commerce Free Enterprise Act of 2019), which provided for the reform of the licensing system to accelerate the development of the commercial remote sensing industry (a single permit for various operations within the same sensing system, shortening the time for issuing licenses, etc.). However, this document did not even reach the voting stage ^[16].

But, despite the complexity and cumbersomeness of regulation, the American remote sensing market, as well as the private sector of the space economy as a whole, is developing rapidly. It seems that this is facilitated by the availability of various tools in the form of special programs and various mechanisms of interaction with non-State participants in space activities, as well as a wide range of incentives for the development of private initiative in new and potentially profitable areas of space activities. For example, no matter how one treats the US Law on the Competitiveness of Commercial Space Launches of November 25, 2015 ^[17] in the context of the contradiction of a number of its provisions to the fundamentals of international space law ^[18-23], this act is important for the American space business, since it creates the legal certainty necessary to stimulate entrepreneurial initiative in a completely new and a potentially lucrative field of space activity. As you know, this document is also called the Law on Stimulating Private Aerospace Competitiveness and Entrepreneurship (Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act of 2015).

As for the institutional approaches themselves, the most common model in the world is full state control of all aspects of space activities, including remote sensing. However, in the context of rapid changes, the expansion of the private space sector and the growing number of entities interested in remote sensing data and services based on them, there is a need for greater flexibility and efficiency in managing this multidimensional sphere.

Australia is a typical example of flexible, adaptive interaction between the state and society in the field of remote sensing regulation. The priorities of the remote sensing policy are determined based on the interests and requests of consumers, which can change very quickly and sometimes radically. Therefore, the State reserves the right to establish the most general regulatory framework, and other practical issues are solved by self-regulation mechanisms.

The model of the Federal Republic of Germany is original and interesting from the point of view of the balance of protection of public and private interests.

German regulation combines reliable protection of national interests by establishing three types of licensing of remote sensing participants (operators, suppliers of primary remote sensing data and data exporters) with the rapid introduction of remote sensing data into commercial circulation (the time frame for obtaining permission to distribute remote sensing data is several times less than in the USA and Canada).

The main focus of the main document in the field of remote sensing regulation – the National Data Security Policy for Earth Remote Sensing Space Systems (2007) is focused on sensitive data related to state security and foreign policy interests, which are created by high-quality remote sensing space systems (but do not cover the operation of military satellites). In pursuance of this act, a series of by-laws aimed at regulating the functioning of optical, radar and other types of remote sensing satellites has been adopted. The law requires obtaining a license by the system operator, as well as by the data provider, regardless of whether it acts as an operator or not.

The authority authorized to issue the license is the Federal Office for Economic Affairs and Export Control - Bundesamt f?r Wirtschaft und Ausfuhrkontrolle (BAFA), responsible for licensing German goods intended for export.

The law establishes the priority of obtaining data for state purposes, but only in clearly defined cases related to defense, counteraction or emergency situations in NATO or in Germany.

It is the responsibility of the data provider to determine whether the data is sensitive to national security or not, which is obliged to check them against this criterion on the basis of computerized algorithms. If the supplier believes that the data is not sensitive, it can allow the customer's receiving stations to download the data without further consideration by BAFA. If the data has signs of sensitive, the supplier requests permission from BAFA to transfer the data to the client. BAFA is obliged to submit its response no later than one month.

In general, country approaches in the field of access to remote sensing data and their dissemination are divided into two large groups: (a) completely state regulation (state bodies or state agencies); (b) a public-private model (the basic principles are established by the state, the details are a non–governmental or commercial structure that has the right to receive, store, process and distribute remote sensing data).

It is noteworthy that national practice in the field of freedom of data dissemination, in addition to the criterion of their sensitivity to national security interests, often depends on the resolution of digital images. For example, in India, remote sensing data with a resolution of more than 1 m is distributed on a non-discriminatory basis and as requested. Data with a resolution of less than 1 m is usually checked and deleted before distribution. In the case of providing high-precision data, depending on the subject, agreements on non-disclosure of data or a ban on their sale are concluded.

An analysis of approaches to regulating the interaction of state bodies with non-state actors in the field of remote sensing shows that the choice of a principled model depends on the overall national strategy for private space.

The admission of the private sector to remote sensing through licensing mechanisms, as well as the introduction by States of various kinds of restrictions on the implementation of remote sensing, the receipt and dissemination of data in order to ensure the interests of national security, defense, compliance with obligations under international treaties are common practice. By themselves, various kinds of restrictions and licensing are the standard rules of the game in the field of space activities. The only question is whether the procedures intended for the admission of new players to the remote sensing market are not becoming essentially protective.

In the world, access to remote sensing activities is, as a rule, permissive (licensing, including obtaining export licenses), although there are examples of application practice (France).

Summing up, it can be concluded that states aimed at stimulating the development of remote sensing from space as a rapidly developing market and an important source of data for solving many managerial and economic tasks are striving to reduce the height of barriers to "entry" into this sphere of commercial participants without prejudice to the interests of national security, and also try to build an effective balance between the state regulation and self-regulation.

Conclusions

Comparative analysis shows that the models of institutional and legal regulation of remote sensing that have developed in international practice are not very diverse in their fundamental design, since this sphere, like space activity in general, has historically been associated with the interests of the state, national defense and security and, accordingly, budget financing. With the increase in the number of participants in space activities, there is a need to define the rules of the game for the commercial sector, although the timing and principles of legislative liberalization depend not so much on market demands as on the general policy of the State regarding private space. The growing interest in the use of remote sensing data in various spheres of economics and management leads to the fact that the focus of regulators' attention is shifted from the initial to the final links of the remote sensing production chain – data processing, production of secondary data, dissemination of information received from space.

At the same time, approaches to determining the gradations of access of civilian users to remote sensing data and the principles of their distribution on a paid or free basis are very diverse and depend on national specifics, which does not allow us to draw conclusions about the prospects of borrowing a particular model. In this context, the development of domestic regulation of the use of remote sensing data could focus on the development of some basic principles in determining the order of access to information obtained from space, "which would not create unnecessary interference with the commercial activities of operators and at the same time reliably meet the needs of society" ^[24].

From a practical point of view, the US experience is of particular interest to Russia, because, despite external differences (especially in terms of interaction with commercial space exploration), there is an internal similarity of the approaches of the two space powers to regulating activities in the field of remote sensing of the Earth from space: the dominant role of the state; permissive approach; complexity and opacity of the system of admission of non-state participants in space activities; lack of mechanisms for challenging refusals.

In particular, it seems important to pay attention to the analysis of the causes of failures with the privatization of the remote sensing sector, since at present the issue of the entry of commercial participants into this sphere of space activity is widely discussed in our country (see, for example, the discussion of the draft law "On remote sensing of the Earth from space", submitted by the State Corporation "Roscosmos" for consideration by the Government of the Russian Federation in June 2021 ^[25-26]).

Of course, as has been repeatedly noted, each State sets the rules and limits for the admission of private entrepreneurs to space activities based on the hierarchy of its national interests, among which economic benefit plays a subordinate role. However, the demand for monitoring data from space is constantly growing, and the principle of "one window" may not be enough to meet it. At the same time, not only the "raw" observation data, images, and other information are important, but, first of all, specialized applications created on their basis that more accurately meet the needs of users.

As you know, the already mentioned domestic bill on remote sensing of the Earth involves licensing not only the actual work in the field of remote sensing and obtaining primary data, but also work on the creation of secondary data, as well as processing (interpretation) and dissemination of remote sensing data. This approach raises concerns of market participants and users ^[27].

In this context, the experience of different countries can be useful in terms of ensuring an effective balance between the need to protect national interests and the importance of freedom of data dissemination, their rapid introduction into civil circulation. It is also important to correctly assess the technological and market maturity of the civil sector (both in terms of production and consumption of remote sensing data), since it was these factors, along with an unsuccessful privatization plan, that led to the collapse of an attempt to create a steadily developing "remote sensing industry" in the United States in the 1980s.

According to experts, it is the extremely diverse use of remote sensing "that can become an obstacle to creating a user community," because even professional users have difficulty understanding the value of data, since special technologies and methods of their interpretation are needed ^{[13, p. 8]}. In contrast to the ease of using satellite communication and navigation services, working with remote sensing data requires either special user training or the presence of "intermediaries" in the form of intuitive applications.

The analysis of these aspects is important for assessing the commercial prospects for the development of not only the sector of remote sensing of the Earth from space, but also the market of relevant digital applications, as well as making decisions on the principles of their regulation.