Answer given by Mr De Gucht on behalf of the Commission
1. The participants in the ACTA negotiations are the EU (representing its 27 Member States), the US, Japan, Switzerland, Canada, Australia, New Zealand, Singapore, Korea, Mexico and Morocco. As is frequently the case in such plurilateral trade-related negotiations, the ACTA parties have agreed that negotiating documents would only be made public when an unanimous decision in that sense is taken by the countries participating in the negotiations. For the time being, certain participants to the negotiation remain opposed to disclosing the documents, since the text is still under negotiation. Under these circumstances, where compromises still have to be found between different countries, and where arbitrations still have to be made at country level as to the final position to be taken in the negotiations, it is not unusual that negotiations are kept confidential for a certain time.
2. At the upcoming negotiating round, the Commission will strongly insist with the other ACTA partners to agree on the release of the negotiating documents. As soon as there is a consensus about the disclosure of the ACTA negotiating documents, these documents can be immediately publicly released.
Nevertheless, the Commission has shared with the European Parliament (particularly via the Committee on international trade) all relevant Commission documents that have been shared with the Member States through the former 133 Committee (now ‘Trade Policy Committee’).
3. ACTA participants have publicly endeavoured to conclude the negotiation this year. Seven rounds of negotiation have taken place since the negotiations were launched in July 2008. The last negotiating round took place between 26 and 29 January 2010 in Mexico. The following round is foreseen to take place between 12 and 16 April, in New Zealand. Several additional rounds will be necessary before the likely conclusion of the negotiation, towards the end of the year.
4. The EU position is that ACTA should apply in general to infringements of all intellectual property rights (copyright and related rights, trademarks, patents, geographical indications, designs, etc). This is the scope adopted in the EU acquis about Intellectual Property Rights (IPR) enforcement (e.g. Enforcement Directive 2004/48(1), Customs Regulation 1383/2003(2)).
Covering more than the counterfeiting of trademarks is necessary because a wide range of EU economic operators rely on economic activities that need IPR protection, e.g. high quality products (geographical indications), innovative industries (patents), fashion and design (designs) or entertainment and culture (copyright).
However, in the case of penal enforcement, the EU is proposing that ACTA provisions should only apply to infringements of copyright and trademarks, consistent with the TRIPs(3) agreement. It is also important, in this context, to keep in mind that the aim of ACTA is to tackle large scale IPR infringement activities, mostly pursued by criminal organisations, and not isolated individual IPR infringement activities.
5. ACTA should only address enforcement measures. It will not include provisions modifying substantive IP law, such as the creation of new IP rights or the definition of their duration, scope of protection, registration, etc.
6. ACTA is not being negotiated at the WIPO (or at the World Trade Organisation) because there was no willingness among the membership of those institutions to address the problems related to the enforcement of IPRs.
7. ACTA will indeed impose obligations with respect to the Internet because of its growing importance as a means of IPR infringement. The multilateral legal framework, and namely the TRIPs agreement, was negotiated before the expansion of the Internet, and it therefore lacks the minimum standards to address such problems. It is important to have an international instrument setting out a framework for addressing this type of infringement in order to make sure that international partners have the same level of protection of IPRs that the EU currently applies, with all the due guarantees provided by its acquis. Since Internet content flows freely across borders, a minimum set of Internet enforcement rules will allow the EU right-holders to have their intellectual creations respected in third countries and, in the case of infringements, will equip them with legal measures to defend their assets.
8. There are no proposals on the table about the introduction of a compulsory ‘three-strike’ or ‘graduated response’ system. The Commission will ensure that ACTA is in line with the current EU acquis and the current level of harmonisation of IPR enforcement. The three-strike system is in place or is envisaged in certain Member States but it is not part of the EU acquis.
9. The Commission considers that the US enforcement system is generally effective and efficient in the protection of certain IP rights. It is understandable that US officials state that ACTA is not a disguised means to circumvent their domestic legislative process and to revise their current laws. The European Commission has stressed the same line on numerous occasions and so has the European Parliament. An international treaty that would adopt the common standards of both the EU and US legislation in the area of IPR enforcement would still remain a most valuable contribution to the current prevailing international standard, as defined by the WTO/TRIPs Agreement.
Additionally, ACTA is not only about improved legal standards. It is also about cooperation between enforcement authorities, the adoption of best practices or the better coordination of technical assistance. Although the EU has had very successful cooperation with the US in these areas for the last 4-5 years, the Commission believes that ACTA can also improve these important aspects of the fight against IPR infringements.
Furthermore, the United States are not the only participant in the ACTA negotiations, and the Commission hopes that, in future, countries not currently engaged in the ACTA negotiations will be able to join the agreement.
Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights, OJ L 196, 2.8.2003.