Challenges to ACTA Mount: The week in Review

Sean Flynn

October 29, 2010

In the midst of increasing controversy on the extent to which ACTA would alter current or proposed changes to U.S. law, over 75 law professors sent a sharply worded letter to President Obama asking him to "direct the USTR [US Trade Representative] to halt its public endorsement of ACTA and subject the text to a meaningful participation process that can influence the shape of the agreement going forward." The letter comes as U.S. government officials having been informing public interest advocates that this is last week of consideration of the text, even while reports are increasing that the text as written conflicts with current and proposed US intellectual property law.

PROFESSORS CHALLENGE PROCESS AND CONSTITUTIONALITY

The October 28 letter by over 75 intellectual property professors, including many of the most prominent names in the field, castigates the USTR for "negotiating a far-reaching international intellectual property agreement behind a shroud of secrecy, with little opportunity for public input, and with active participation by special interests who stand to gain from restrictive new international rules that may harm the public interest."

The law professor letter makes three major points.

THE SECRECY VIOLATES OBAMA'S OPEN GOVERNEMNT PLEDGES

First, the degree of secrecy in the negotiation -- with the USTR failing to hold a single on the record hearing on the text over the entire history of the negotiation -- "is unacceptable, unwise, and directly undercuts your oft-repeated promises of openness and transparency."

The process being criticized by the professors was the result of an explicit USTR plan, released earlier this year under a Freedom of Information Act request by KEI, to create a muddled "transparency soup" that feigned an open process while taking no substantive steps to actually promote public deliberation over the secretive agreement.

The letter concludes on this point: "The Administration's determination to hide ACTA from the public creates the impression that ACTA is precisely the kind of backroom special interest deal - undertaken in this case on behalf of a narrow group of U.S. content producers, and without meaningful input from the American public - that you have so often publicly opposed." 

ACTA IS UNCONSTITUTIONAL AS A SOLE EXEC AGREEMENT

The letter's strongest legal argument is its second point. The use of the "sole executive agreement" model for the agreement -- through which it would enter into force without congressional assent or even presidential signature -- is unconstitutional.

"Sole" executive agreements are the worst kind from the perspective of democratic decision making. Such agreements are made by executive departments without any congressional involvement before or after the agreement. Indeed, they do not even require a Presidential signature. They are distinguished from "ex ante congressional-executive agreements," in which the President acts under authority granted to him in advance by Congress. And they are also distinguished from "ex post congressional-executive agreements"-agreements ultimately approved by both houses of Congress through the normal legislative process after the fact.

USTR has justified its use of this model because, in its opinion, the agreement will not alter US law. But that is the wrong question. The President does not have unlimited power to set policy, including constraints on future law, just because it would not violate any current law now (which in ACTA's case, is contested). 

The letter explains:

"The President may only make sole executive agreements that are within his independent constitutional authority. The President has no independent constitutional authority over intellectual property or communications policy, the core subjects of ACTA. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property."

The letter details many areas where ACTA usurps legislative authority by putting in place terms that conflict with existing law or inhibit change in existing law to adapt to future conditions. The letter explains:

"Some of ACTA's provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions.  Other sections lock in substantive law that may not be well-adapted to the present context, much less the future.  And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate.  The agreement is also likely to affect courts' interpretation of U.S. law."

The letter echoes the Restatement of Law on the subject: "the President, on his own authority, may make an international agreement dealing with any matter that falls within his independent powers under the Constitution." But the contrary is also true. As Yale Law Professor Oona Hathaway explains (p.212): "the President may not commit the United States to an international agreement on his own if he would be unable to carry out the obligations created by the agreement on his own in the absence of an agreement." The President has no authority to make Congress pass or refrain from passing law in order to comply with ACTA. So passing ACTA as a sole executive agreement is beyond his authority. This agreement is unconstitutional.

ACTA HAS BEEN MISREPRESENTED AS A NARROW AGREEMENT ON COUNTERFEITING

Third, the scope of the agreement has been misrepresented to the public. Rather than being confined to narrow issues of criminal counterfeiting of trademarked goods, "this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods - whether they are counterfeit or not - and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the U.S. or abroad."

At bottom, the letter calls on President Obama to adopt a five point plan to promote broad participation in the analysis of the current text and reform how ACTA would be administered going forward.

The original letter was drafted and circulated by Chris Sprigman, University of Virginia, 434-249-4345, Dave Levine, Elon University, 336-279-9298 , Sean Flynn, American University, 202-294-5749. Over 70 other professors who specialize in intellectual property signed the letter. The signatories include many prominent intellectual property scholars from leading universities.

News and blog coverage on the professor letter include stories by National Journal Tech Daily Dose, Techdirt, Frank Pasquale, Balkinization Michael Geist.

UN  SPECIAL RAPPORTEUR CALLS ACTA DANGER TO HUMAN RIGHTS

At an October 28 public consultation on ACTA and the right to health, the UN Special Rapporteur on the Right to Health, Anand Grover, commented that the process for creating ACTA appears to violate international human rights obligations for ensuring participation in law making affecting access to medicines and other health issues.

SENATORS, PTO AND NGOS RAISE CONCERNS ABOUT CONFLICTS WITH US LAW

There has been an increasing amount of analysis released showing specific areas of law or current reform proposals that appear contrary to ACTA mandates, particularly in the damages and injunctions chapters.

Concerns about conflicts between ACTA and U.S. law have been raised by Senators Sanders, Brown and Wyden, NGOs, including KEI, and by the Patent and Trademark office (Inside US Trade, October 29, 2010, Volume 28; Issue 42). With regard to the PTO, Inside Trade reports:

"Officials in the U.S. Patent and Trademark Office (USPTO) believe that the nearly finalized Anticounterfeiting Trade Agreement (ACTA) may contradict a provision in the health care reform act and other laws related to U.S. patents, and are undertaking an analysis to find out if this is the case, sources said."

The increasingly powerful evidence that USTR has negotiated an agreement that conflicts with US law and reform proposals has prompted USTR to adopt some rather creative interpretations of the agreement. In recent discussions with NGOs, U.S. government officials suggested that the USTR believes it can adopt exceptions to remedies required by ACTA by relying on Article 1.2, which provides that "Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice." But this interpretation of Article 1.2 appears to conflict with the US positions in WTO dispute settlement proceedings that the same language in TRIPS does NOT offer a catch all means to implement exceptions to rights or duties not explicitly included in the text. ACTA does not contain a general provision allowing countries to fashion reasonable limitations and exceptions from ACTA's mandates.

GROWING QUESTIONS IN THE EU

In Europe this week, parliament has been holding a legislative debatwe on ACTA and issuiong questions to the Commission on the text. Unlike in the US, the EU admits that ACTA is a treaty subject to parliamentary approval or rejection. The growing evidence that ACTA cannot be legally implemented in the US prompted a member of the European Parliament, Francois Castex, to submit an urgent written question on whether the U.S. believes the agreement is binding on itself, or only on other countries.

CANADA HEARING CALL

Drives for formal public participation processes are moving forward in other ACTA negotiating countries as well. Bloc MP Carole Lavallée sponsored a motion calling for hearings on Canada's role at the Anti-Counterfeiting Trade Agreement negotiations. Michael Geist reports that Canada may be following an even worse participation process that the U.S. "Unlike other ACTA countries, which have held meetings with interested parties and politicians since the last round of negotiations, Canadian officials and politicians have remained silent."

INDIA CHALLENGE TO ACTA IN TRIPS COUNCIL

ACTA also became the focus of the WTO TRIPS Council this week, where India made a strong intervention detailing "systemic and specific concerns regarding the Anti Counterfeiting Trade Agreement (ACTA)." India's statement explained:

"After years of negotiations in secrecy, we appreciate that negotiating text has now been released due to the unrelenting pressure of civil society, civil liberty groups and groups of parliamentarians. The ACTA text of 2nd October available in public domain has several elements which have far reaching implications for ACTA non-Members."

India warned that "My delegation is not sure that ACTA is TRIPS compliant but we reserve our final position till after the text is finalised." It did raise one specific inconsistency with TRIPS:

"We call attention to the fact that ACTA negotiators have decided among themselves to overturn the decision of the WTO dispute settlement panel in the recent China-Enforcement case by reinterpreting the phrase "commercial scale" with respect to willful trademark counterfeiting and copyright piracy so as to refer to any activity carried out for a direct or indirect economic or commercial advantage. This is startling in light of the WTO panel's contrary decision that the term "scale" refers to a level of activity, and it highlights the risk to WTO law posed by turning enforcement matters over to small groups of plurilateral negotiators operating outside the WTO legal framework." 

THE WAY FORWARD

It is difficult to find anyone outside of USTR and the other negotiating party offices that believe that the ACTA process is legitimate and that this is a good and democratic means to create a new global framework on intellectual property. It is time to slow down, open up the process, analyze the text and amend it where necessary. Those that think an ACTA is a good idea, don't think putting in place a bad ACTA rife with conflicts and is a good idea. The time to fix it, and to fix the model for international intellectual property lawmaking, is now.

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