Infojustice Roundup 

Intellectual Property and the Public Interest

Law Professors Declare Anti-Counterfeiting Trade Agreement Unconstitutional Without Congressional Approval

Last week, fifty U.S. legal scholars sent an open letter to the Members of the Senate Finance Committee, asking each of them to “exercise your Constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to [Congress].” The letter responds to State Department Legal Advisor Harold Koh’s earlier claim that ACTA did not require Congressional approval because it received prior authorization by the 2008 PRO-IP Act. The letter explains: “First, the plain language of [the PRO-IP Act] does not authorize USTR to bind the U.S. to any international agreement. 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, 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 thus concludes that “the Administration currently lacks a means to Constitutionally enter ACTA without ex post Congressional approval.”Click here for more.

State Department Response to EFF Freedom of Information Act Request: No Pre-Review of ACTA

Last February, the Electronic Frontier Foundation submitted a Freedom of Information Act Request to the State Department, asking for documents associated with the Department’s review of ACTA.  As explained in a blog post by Gwen Hinze, when a treaty or international agreement is going to be negotiated, the State Department must prepare a “Circular 175 Memorandum” that addresses whether or not the negotiation and implementation of the agreement are carried out in a Constitutional manner.  The State Department response to EFF’s FOIA request was that “no Circular 175 Memorandum or Memorandum of Law were ever issued for the Anti-Counterfeiting Trade Agreement.” Click here for more.

PETITION:  Require free access over the Internet to scientific journal articles arising from taxpayer-funded research

The following petition is on the White House “We the People” website.  The Administration will respond to the petition if it is signed by 25,000 people within 30 days: “We believe in the power of the Internet to foster innovation, research, and education. Requiring the published results of taxpayer-funded research to be posted on the Internet in human and machine readable form would provide access to patients and caregivers, students and their teachers, researchers, entrepreneurs, and other taxpayers who paid for the research. Expanding access would speed the research process and increase the return on our investment in scientific research. The highly successful Public Access Policy of the National Institutes of Health proves that this can be done without disrupting the research process, and we urge President Obama to act now to implement open access policies for all federal agencies that fund scientific research.” Click here to sign the petition.

R&D Treaty Debate at the World Health Assembly


Proposals for a global treaty on funding and coordination of medical research and development will be discussed this week at the 65th World Health Assembly (WHA) in Geneva. The proposals grow out of the ongoing debate over the failure of the world’s IP system to incentivize research into diseases that primarily affect the world’s poor.  Last month, the Consultative Expert Working Group on R&D Financing and Coordination recommended the negotiation of a Convention on financing and coordination of R&D.  Kenya has submitted a WHA resolution calling on the World Health Organization to begin work on the Convention.  A recent paper in PLoS Medicine by Suerie Moon, Jorge Bermudez, and Ellen t’Hoen argues in favor of the Convention, and it will be the topic of a WHA side event hosted by MSF and HAI.  Click here for more.

Senate HELP Committee Holds Hearings on Bill to Create a Prize Fund for HIV/AIDS Medicines

The Senate HELP Subcommittee on Primary Health and Aging held a hearing on May 16 on the Prize Fund for HIV/AIDS Act (S. 1138).  The bill, introduced by Sen. Bernie Sanders, would provide direct support to innovators while allowing immediate generic competition upon approval of new treatments for HIV/AIDS. The witnesses who testified were Dr. Mohammed Akhter , ( DC Department of Health), Frank Oldham (National Association of People With AIDS), Suerie Moon (Forum on Global Governance for Health, Harvard Global Health Institute and Harvard School of Public Health), Joseph Stiglitz (Columbia University), Lawrence Lessig (Harvard Law School), and James Love (Knowledge Ecology International).  A webcast of the hearing and the witness’ prepared statements are available here.

Remarks of Rep. Waxman on the Fifth Anniversary of the “May 10 Agreement”

[Excerpt from Rep. Waxman’s prepared statement] “Five years ago today, we achieved a breakthrough, taking a critical step toward a more progressive trade policy that raises standards for labor, the environment, and public health. I became involved because much of the U.S. proposal on trade and medicines was being taken from Hatch-Waxman, the landmark law that delivered generic drug competition to the American marketplace.  The only problem was that our trade proposals were being designed to have the exact opposite effect – delaying generic competition in poor countries, countries in which the vast majority of people could not afford brand name medicines.” Click here for more.

USTR Announces Next Round of TPP Negotiations

[By Sean Flynn] USTR has announced that the next round of TPP negotiations will be held in San Diego, California from July 2-10.  The Stakeholder Engagement Forum for that round will take place on Monday, July 2. The release from USTR shows some notable sensitivities to stakeholders, in both tone and substance. On tone, they spend quite a bit of space justifying their halving of the time normally allotted to stakeholder sessions and the shift to an exhibition-style table format. To be fair, others at the meeting, even those opposed to USTR’s general outlook, have commented that the tables were relatively effective — even if they should be in addition to instead of a substitute for presentations. Click here for more.

BSA Report on Global Software Piracy

The Business Software Alliance has produced its 2011 Global Software Piracy Study, which states that 57% of personal computer users have used pirated software, and that the net rate of software piracy is 42%.   It reports that the piracy rate in emerging markets is far higher than that of high income countries (68% versus 24%).  It reports piracy rates and the commercial value of licensed software in 33 individual countries, which together represent 82% of the world computer market. Click here for more.