[A2k] Acta's Constitutional Problem

Sean Flynn sflynn at wcl.american.edu
Mon Nov 15 12:25:50 PST 2010

Today, the USTR announced finalization of the ACTA text. It explained
that, following a final meeting on "legal verification of the drafting,"
ACTA will "be ready to be submitted to the participants' respective
authorities to undertake relevant domestic processes."[1]

. . . 

As an agreement setting minimum legislative standards in areas of
intellectual property law and the regulation of IP-protected goods on
the internet and in international trade, ACTA directly implicates
Congress's Article I, Section 8 powers. These include, most
specifically, those to "make all Laws which shall be necessary and
proper for carrying into Execution" its powers "To regulate Commerce
with foreign Nations" and "To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries." There is
no residuum of power in these areas that the executive can claim. For
this reason, USTR cannot bind the US to ACTA as a sole executive
agreement. That act is clearly unconstitutional.






Sean Flynn

Associate Director

Program on Information Justice and Intellectual Property

American University Washington College of Law

202 274 4157



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