[A2k] USTR's implausible claim that ACTA Article 1.2 is an all purpose loophole, and the ramifications if true

James Love james.love at keionline.org
Fri Oct 22 15:03:26 PDT 2010


Source URL: http://keionline.org/node/990

USTR's implausible claim that ACTA Article 1.2 is an all purpose
loophole, and the ramifications if true

By James Love
22 Oct 2010

The October 2010 version of the ACTA text is inconsistent with several
areas of U.S. law, and proposals for new laws in the areas of the reform
of patent damages [1] and access to orphaned copyrighted works [2]. In
particular, the obligations in the ACTA text do not incorporate many of
the areas of limitations and exceptions to remedies found in U.S. law,
and in the statutes of some other countries.

USTR, and its defenders in and outside of the government, claim that
this is not important, because the U.S. can ignore the plain language of
the ACTA agreement, and make exceptions, under the flexibility of
Article 1.2.1 of the ACTA, which reads:

ACTA ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS
1. Each Party shall give effect to the provisions of this Agreement. A
Party may implement in its domestic law more extensive enforcement of
intellectual property rights than is required by this Agreement,
provided that such enforcement does not contravene the provisions of
this Agreement. Each Party shall be free to determine the appropriate
method of implementing the provisions of this Agreement within its own
legal system and practice.

The key sentence the USTR refers to is: "Each Party shall be free to
determine the appropriate method of implementing the provisions of this
Agreement within its own legal system and practice."

This language is taken from Article 1.1 of the TRIPS Agreement.... 

-----------------------------
TRIPS Article 1
Nature and Scope of Obligations
1. Members shall give effect to the provisions of this Agreement.
Members may, but shall not be obliged to, implement in their law more
extensive protection than is required by this Agreement, provided that
such protection does not contravene the provisions of this Agreement.
Members shall be free to determine the appropriate method of
implementing the provisions of this Agreement within their own legal
system and practice.
-----------------------------

To be very blunt about things, no one seriously argues that Article 1 of
the TRIPS agreement is a catch-all get of jail free card for the
specific obligations in the TRIPS Agreement. If USTR wants to argue that
Article 1.2.1 of the ACTA is an all purpose exception for ACTA, what is
USTR saying about Article 1 of the TRIPS agreement? Anything goes?

   [snip]

Continued here: http://keionline.org/node/990

-- 
James Love, Director, Knowledge Ecology International
http://www.keionline.org | http://www.twitter.com/jamie_love
Wk: +1.202.332.2670 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.6584





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