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We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

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2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

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    US Legal Academics Call For Congressional Review Of ACTA

    Published on 18 May 2012 @ 2:25 am

    By for Intellectual Property Watch

    An open letter was sent yesterday from 50 American legal academics encouraging members of the United States Senate Finance Committee to exercise their Constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is treated as a binding international agreement requiring legislative ratification and sent to Senate for approval.

    “[I]t is our studied opinion that the administration has failed to identify ex ante authorization of ACTA by Congress, and that these are thus the only Constitutional bases for U.S. entry into ACTA,” they wrote.

    This letter is in response to the Department of State Legal Advisor Harold Koh’s claim that ACTA was authorized by Section 8113(a)(6) of the 2008 PRO-IP Act (IPW, US Policy, 14 October 2008).

    The letter argues that Koh’s claim fails on two counts:

    “First, the plain language of Section 8113(a) of the PRO-IP Act does not authorize USTR to bind the U.S. to any international agreement,” they said. “Rather, the section merely describes the purposes of a Joint Strategic Plan against counterfeiting and infringement, to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC).”

    “Second,” they continued, “the PRO-IP Act cannot be an ex ante authorization for ACTA because it was not temporally ex ante. The ACTA negotiation began in 2007. PRO-IP was not passed until 2008….”

    The letter concludes that inducting ACTA without ex post Congressional approval would be unconstitutional.

    The Constitution dictates that the United States can bind itself international agreements in one of three ways, by:

    1) ratification through the Treaty Clause, requiring approval by a two-thirds vote of the Senate;
    2) an ex ante Congressional-Executive Agreement, in which the Executive is granted the power to craft and enter the agreement following approval from both houses of Congress and the President;
    or
    3) an ex post Congressional-Executive Agreement, in which an Executive-negotiated agreement is passed onto both houses of Congress for approval and signed into the law by the President.

    The letter goes on to explain that “[r]egardless of whether ACTA requires changes in U.S. law (many claim that it does), these are matters subject to the legislative power vested in the Congress, not in the sole executive province of the President.”

    Furthermore, they contend that “[t]he present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers.” If Congress were to allow the Executive to claim that ACTA was authorized by Section 8113(a), it would be surrendering unprecedented power to the Executive.

    The full text of the letter can be found here.

    [Update:] The Electronic Frontier Foundation has also questioned the USTR’s authority to enter into ACTA, specifically the failure to undergo the Circular 175 procedure necessary to sign a binding treaty.

    Nancy Situ is a researcher with Intellectual Property Watch. She is a JD Candidate at Osgoode Hall Law School in Toronto. Her interests lie within copyright and trademark policy, especially pertaining to freedom of expression and challenges in an online environment. She is currently an IPilogue editor and the Senior Editor-in-Chief of Obiter Dicta.

    Nancy Situ may be reached at info@ip-watch.ch.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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