[Ip-health] Public Interest Comments filed in ACTA and Special 301 dockets

Sean Flynn sflynn at wcl.american.edu
Thu Feb 17 09:33:15 PST 2011

Yesterday, a number of public interest organizations submitted comments
in USTR proceedings on ACTA and on Special 301. 


In a proceeding calling for comments on the Anti-Counterfeiting Trade
Agreement (ACTA), thirty legal and international trade academics
asserted that the entry of the agreement without congressional consent
violates the U.S. Constitution. http://infojustice.org/archives/1166  


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."


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). The
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

-threaten medicine pricing programs abroad that are identical to state
operated Medicaid reimbursement programs in the U.S.;

-failed to adhere to global best practices on copyright policy.


A collection of comments in the 301 docket can be found at


More information on Special 301 and ACTA can be found at PIJIP's
resource page on the International Intellectual Property Enforcement


Sean M Fiil Flynn

Associate Director

Program on Information Justice and Intellectual Property

American University Washington College of Law

Washington D.C. 20016

202-274-4157; 202-294-5749 (cell) 


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