[Fsfe-ie] european constitution and IP

David O'Callaghan david.ocallaghan at cs.tcd.ie
Wed Mar 9 19:37:16 CET 2005

On 09/03/05 17:52, Fergal Daly wrote:
> Article II-77
> http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004/c_310/c_31020041216en00410054.pdf
> Right To Property
> 1. [stuff about physical possessions]
> 2. Intellectual property shall be protected
> This could conceivably mean that a law which removes IP protection could be
> found unconstitutional, even one that limits the duration of copyright. 
> Am I missing something or is this the disaster it seems to be?

It looks terrible to me. It's not clear how this "right" is balanced 
against other rights, or how it is limited in any way. Also, all the 
other rights seem to refer to people, to "everyone", but this one just 
says "intellectual property shall be protected".

Also, I don't think the link you gave is the full constitution. The 
treaty establishing the constitution can be found at 
http://european-convention.eu.int/DraftTreaty.asp?lang=EN and it's 265 
pages! The term "intellectual property" is not defined but appears 
several times, including the article you mention. Also:

	Article III-68
	In establishing an internal market, measures for the introduction of 
European instruments to provide uniform intellectual-property rights 
protection throughout the Union and for the setting up of centralised 
Union-wide authorisation, coordination and supervision arrangements 
shall be established in European laws or framework laws.

	Article III-217
	1. The common commercial policy shall be based on uniform principles, 
particularly with regard to changes in tariff rates, the conclusion of 
tariff and trade agreements relating to trade in goods and services and 
the commercial aspects of intellectual property, foreign direct 
investment, the achievement of uniformity in measures of liberalisation, 
export policy and measures to protect trade such as those to be taken in 
the event of dumping or subsidies.  The common commercial policy shall 
be conducted in the context of the principles and objectives of the 
Union's external action.
	4. For the negotiation and conclusion of agreements in the fields of 
trade in services involving the movement of persons and the commercial 
aspects of intellectual property, the Council of Ministers shall act 
unanimously where such agreements include provisions for which unanimity 
is required for the adoption of internal rules.

	Article III-269

	Without prejudice to the other provisions of the Constitution, a 
European law may confer on the Court of Justice, to the extent that it 
shall determine, jurisdiction in disputes relating to the application of 
acts adopted on the basis of the Constitution which create European 
intellectual property rights.

Scanning through the document and coming across this stuff I'm really 
shocked at the how much it essentialy locks down as the fundamentals of 
European law. As you say, laws that lessen "intellectual property" 
"rights" could be deemed unconstitutional. In a broader scope, it ties 
Europe to a neo-liberal market approach in, for example, privatized 
services. This could mean that in a few years time if one of the member 
goverments decided that, no, privatizing the water, health care and 
education services wasn't such a good idea after all, their actions 
could be deemed unconstitutional!


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