by Mike Masnick

Filed Under:
acta, copyrights, patents

Where ACTA Disagrees With US Law

from the but-they-promised... dept

With Senator Wyden asking the Congressional Research Service to investigate how ACTA might conflict with US law (or restrict the ability to reform the law), KEI has put together a list of specific areas where ACTA's text is inconsistent with US law. Remember, negotiators have repeatedly insisted that nothing in ACTA will (or even can) change US law. ACTA defenders have stressed the point, repeatedly, that nothing in ACTA can legally change US law. But what no one explains is what happens when the law and the agreement are in disagreement. That's because no one wants to deal with the inevitable: when such situations come about, US lobbyists will scream about how we're "not meeting our international obligations," and will put plenty of pressure on the US until we get into "compliance." So, I'm wondering if those who insist ACTA won't change US laws will agree now to speak out against anyone who cites ACTA down the road in asking for US law to change?

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  1. icon
    Terry Hart (profile), 12 Oct 2010 @ 4:10pm

    Re: Re: Re: Re:

    Article 1.3 of ACTA states "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law." This would seem to me to address many of the exceptions and limitations on IPRs raised in the KEIOnline article. The scope of IPRs is already governed by TRIPS, which expressly provides for limitations and exceptions in Article 13.

    Regarding sovereign immunity and several of the limitations mentioned for gov't organizations (KEIOnline mentions the Nat'l Archives and Records Admin and the Library of Congress), Article 2.X, General Obligations with Respect to Enforcement, of ACTA provides "4. No provision of this Chapter shall be construed to require a Party to provide for liability of officials for acts undertaken in the performance of their official duties." In addition, the chapter on injunctions provides that "a Party may limit the remedies available against use by government, or by third parties authorized by a government, without the authorization of the right holders to the payment of remuneration provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use."

    Regarding the statutory remedies in US law that are not based on "any measure put forward by copyright owners," these are consistent with the ACTA provisions highlighted above. It should also be noted that Article 2.2 of ACTA doesn't require judicial authorities to only consider damages calculated by any measure put forward by copyright owners. It only states that, under the ACTA, this is one of the options available in civil proceedings.

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