[Fsfe-ie] european constitution and IP
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
> 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:
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.
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.
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!
-------------- next part --------------
A non-text attachment was scrubbed...
Size: 2955 bytes
Desc: S/MIME Cryptographic Signature
Url : http://mail.fsfeurope.org/pipermail/fsfe-ie/attachments/20050309/ede53d99/attachment.bin
More information about the FSFE-IE