Date: 17 February 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 medicines;
-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 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