PIJIP Project Assists Law Professors and Public Interest Groups in Submissions to USTR on IP and Trade Policy

February 18, 2011

Prof. Sean Flynn

PIJIP Associate Director Sean Flynn and PIJIP Assistant Director Michael Palmedo worked with public interest organizations and a coalition of 30 academics to organize, write and file submissions on February 16, 2011 with the United States Trade Representative in proceedings on the Anti-Counterfeiting Trade Agreement (ACTA) and Special 301.  A principal argument in the submissions is that the Obama Administration lacks constitutional authority to enter into ACTA without congressional approval.

In a proceeding calling for comments on ACTA, 30 legal and international trade scholars signed a submission authored by PIJIP Associate Director Sean Flynn working closely with colleagues at other schools including David Levine (Elon), Christopher Sprigman (Virginia), Anthony Falzone (Stanford Fair Use Clinic), Brook Baker (Northeastern) and Kevin Outterson (Boston). The submission was co-signed by a large group of prominent intellectual property professors from around the country.

The submission states in its introduction:
We write to call on the Obama administration to comply with the Constitution by submitting the Anti-Counterfeiting Trade Agreement (ACTA) to Congress for approval.

The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce, which are at the heart of ACTA’s terms, are Article I Section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or approval.

The unconstitutionality of the process by which the Obama Administration intends to implement ACTA is further highlighted by the fact ACTA will constrain U.S. law by locking in the policy choices ACTA makes and the requirements it imposes.  The choice of whether to adopt substantive constraints on U.S. law must be made with Congressional participation. That participation is even more critical here, because ACTA was drafted and negotiated under unprecedented and deliberate secrecy — a non-accountable process that excludes the meaningful participation of a wide range of interests. The process by which ACTA was created and the means by which the Obama administration intends to implement it is undemocratic and unconstitutional. Together, they create a dangerous new process for international intellectual property lawmaking that should be rejected.

Click here for the full submission to USTR.

The other filings were submitted in a notice and comment process for the USTR’s “Special 301” program, which is a process through which the USTR unilaterally threatens sanctions on foreign countries for failing to adhere to U.S. demands on domestic intellectual property regulation (even when not contained in any international agreement).

PIJIP faculty and staff provided assistance in filing three submissions in the Special 301 process. Organizations assisted by PIJIP included submissions by a broad public health network Alianza LAC-Global por el Acceso a los Medicamentos (Colombia), All India Drug Action Network (India), Center for Policy Analysis on Trade and Health (United States), Fundación Misión Salud (Colombia), Health Action International - Latin America and the Caribbean (Peru), Intellectual Property Justice (United States), Health Global Access Project (United States), LOCOST (India), and Oxfam America (United States)]; organizations that represent state governments and legislatures (the Forum on Democracy and Trade and the National Legislative Association on Prescription Drug Prices); and leading consumer copyright policy organizations [Centre for Internet and Society (India), Centro de Tecnologia e Sociedade (Brazil), Closer2Patents (India), Derechos Digitales (Chile), Electronic Frontier Foundation (United States), Fundación Karisma (Colombia), IP Justice (United States), Knowledge Ecology International (United States), La-EX (Spain), and Public Knowledge (United States)].  

Submissions on behalf of various groups of public interest advocates argue that past use of the Special 301 program have:

  • violated the World Trade Organization agreement;
  • harmed the interests of poor countries in accessing affordable medicines;
  • threaten medicine pricing programs abroad that are identical to state operated Medicaid reimbursement programs in the United States;
  • failed to adhere to global best practices on copyright policy.

A collection of these and other comments in the 301 docket can be found at http://infojustice.org/special-301/2011-special301comments

More information on Special 301 and ACTA can be found at PIJIP’s resource page on the International Intellectual Property Enforcement Agenda, http://www.wcl.american.edu/pijip/go/research-and-advocacy/enforcement  

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