More than 70 US law professors have written to President Obama
warning him of legal flaws in the ACTA process.
They warn:
“Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. 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 use of a sole executive agreement for ACTA appears unconstitutional.”
They also warn that
“The treaty is named the “Anti-Counterfeiting Trade Agreement”. But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, 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.”
They recommend that the President should halt the process to ensure proper public consultation including:
“Hold a meaningful open, on-the-record public hearing on the draft text, the results of which will be used to determine what proposed changes to the agreement the administration will propose; “
and
“Renounce its position that the agreement is a “sole executive agreement” that can tie Congressional authority to amend intellectual property laws without congressional approval and instead pledge to seek congressional approval of the final text.”
For observers from the developing world this is a hopeful development but it may be ignored.
If its ignored that will be the clearest possible indication to every person concerned with development, not only that a small clique of corporations with defunct business models are willing to see millions die and millions more live in poverty to prop up their business models, but also that those same corporations can write whatever laws they please.
