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Debates
Wednesday, 20 October 2010 - Strasbourg OJ edition

16. Anti-Counterfeiting Trade Agreement (ACTA) (debate)
Video of the speeches
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  President. – The next item is the Commission’s statement on the Anti-Counterfeiting Trade Agreement (ACTA).

 
  
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  Karel De Gucht, Member of the Commission. – Mr President, honourable Members, you asked me to come to the plenary to explain where we are in the negotiations on ACTA – the international Anti-Counterfeiting Trade Agreement. I share your view that this is an important dossier, and I am here for the third time in less than a year to discuss it with you.

Where are we? Well, in two words, we are almost there. Indeed, on 2 October 2010, negotiators from the EU and 10 other countries concluded the last round of negotiations. They have resolved nearly all issues with only a few still open. I will come back to that later.

A consolidated and largely stabilised text of the proposed agreement was made public two weeks ago. I hope that this has allowed you to find out that the Commission has scrupulously respected the principles that I laid out in my previous interventions in this House.

It is essential to remember that ACTA is an agreement concerning the enforcement of intellectual property rights. This means that it does not oblige any of its signatories to create new, substantive rights or to change existing ones. It only commits its signatories to ensuring that the rights holders can fully assert their rights if, when and where they exist.

ACTA is about establishing a new tool that will ensure that existing intellectual property rights are effectively protected. This is essential if we want to maintain a leading role in the ‘knowledge economy’. Contrary to what some seem to be claiming, ACTA is not about creating some sort of ‘Big Brother’.

I know that you had concerns with the fact that the negotiations were conducted behind closed doors and that the negotiating texts were not made public. At the insistence of the Commission, successive versions of the text have been published and our negotiators came here after each round to answer all your questions. We have taken these steps to ensure that we could debate the topic in a climate of mutual trust.

I should like to mention that the Ombudsman has recently recognised, in the precise context of the ACTA negotiations, that it was justified to maintain the confidentiality of some key negotiating documents. The Ombudsman confirmed that the preservation of confidentiality was legal and in line with the 2001 Regulation on access to documents.

Let me now highlight some of the main features of ACTA. Firstly, a broad coverage of intellectual property rights (IPRs). Given the diversity of IPRs, on which European operators rely to protect their inventions, we have fought for, and obtained, broad coverage. In particular, we have managed to ensure that Europe’s geographical indications (GIs) will be treated equally.

This is an EU success. It would not be in the draft ACTA Treaty without the European Commission. I know that it may not go as far as some would have liked – for example, as regards border measures. Justified differences will remain, and ACTA Parties will not have to adopt the EU system of protecting GIs through sui generis systems.

Secondly, ACTA defines for the first time an international standard for intellectual property infringements on the Internet. The Internet is the most global, open and fast-moving market environment, where music, films, books and software circulate. Millions of counterfeit goods are traded every day through the Internet. ACTA thus represents a ground-breaking – yet balanced – level of harmonisation and transparency for the rules applicable to such infringements, whilst remaining fully in line with the EU acquis.

Let me stress that ACTA will not change the EU acquis. Our negotiating guidelines requested this and we have scrupulously respected it, as you can see from the text.

Thirdly, ACTA provides a balanced agreement, which replies to the four main concerns expressed by Members, for the following four reasons.

Firstly, the text does not affect the protection of fundamental rights, privacy and data protection.

Secondly, it respects the important role of free Internet and safeguards the role of service providers, as well as the European system of copyright exceptions, such as the European regime of conditional exemption of liability for Internet operators. European exceptions, like private or educational use, will also remain valid.

Thirdly, the text refers to those provisions of the TRIPS agreement that safeguard the essential balance between the rights of the right holders and the public interest, and that stress the ‘need for intellectual property rights to contribute to technical innovation, socio-economic welfare, or the protection of health’.

Fourthly, ACTA explicitly recognises the importance of guaranteeing access to medicines, by referring to the Doha Declaration on the matter, as well as by explicitly excluding patent infringements from the sections on border and penal enforcement.

What is the state of play and the next steps in ACTA? Well, in Tokyo, it was not possible to finalise the text. The parties kept a few reservations, which still need to be addressed in the coming weeks. There are, in particular, two issues open.

Firstly, should patent infringements be included or excluded from the scope of civil litigation measures? I would be interested to hear your views on this issue. I am concerned that a blanket exclusion of patents – an important intellectual property right – might risk depriving many industries of the benefits of this chapter. I am thinking, for example, of the automotive, machinery, pharmaceutical and agro-chemical sectors.

Secondly, the other important issue has to do with the EU proposal that the Internet measures stipulated in ACTA must apply not only to copyright but – at least – also to trademark violations. As you know, on the Internet, you can find thousands of offers for fake goods using European brands, be it for clothes, cosmetics, watches or even foodstuffs. I believe we should address these infringements made through the Internet because they are basically identical to real-life infringements concerning physical goods.

To conclude, I am firmly convinced of the importance of tackling the widespread abuse of European intellectual property around the world. ACTA can provide an important contribution towards this goal, in full compliance with existing European legislation. ACTA is the first important international agreement on IPRs since the TRIPS agreement in the WTO back in 1994. It also strikes a proper balance with the rights of citizens and consumers.

I look forward to a continued close dialogue with the European Parliament and towards the successful conclusion of the agreement and its subsequent approval.

 
  
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  Daniel Caspary, on behalf of the PPE Group.(DE) Mr President, Commissioner, ladies and gentlemen, I would like to express my sincere thanks to the Commissioner for taking the opportunity several times in recent months, firstly, to report here to the plenary part-session and secondly, to attend question and answer sessions with the relevant parliamentary committee, either in person or through his staff. It is right and important that we should assure the European Parliament that the Commission really does report on the status of negotiations in a transparent way. I believe that this also places us in a position to evaluate, and therefore approve or reject, such an agreement on the basis of solid data.

My impression at the moment is that many critics are running out of arguments against the ACTA agreement. I think it is a good thing that the acquis communautaire remains unchanged. It would be really great if the Commission could once again show us that this really is copper-fastened. There are still some Members of this House who have their doubts about this and I would be grateful if the Commission could explain this issue once again in a clear, unambiguous way – perhaps even having the Commission’s legal service check the matter out. I believe it is a positive thing that the ACTA agreement is apparently focusing on the implementation of existing law, rather than the framing of new laws.

I particularly welcome the section on the Internet. It is high time that we took action in relation films, music, books and software circulating on the Internet. I am not looking to criminalise any of our citizens, but I believe that it must be possible for artists and creators also to pursue their intellectual property rights on the Internet and I welcome the fact that the ACTA agreement offers a first step in this direction.

I would definitely have preferred to deal with the entire issue in the context of the WTO. However, I also note that we lacked suitable partners in dialogue within the WTO, which is why the ACTA agreement is certainly a good start. I would be grateful if the Commission, possibly after the conclusion of the ACTA agreement, would do all it can to ensure that as many other countries as possible sign up to this agreement and would also demonstrate a little flexibility in cases where doubts exist.

I particularly welcome the fact that you have succeeded in including information on geographical origin – such as champagne, Scotch whisky, Parma ham, etc. – I would like to congratulate you on this. I believe this is a huge step forward for the interests of the European Union. It must be possible to secure and protect our European origin labelling and information in the same way as trademarks like Coca Cola, Kellogg’s Cornflakes, etc. I believe we must take active steps here in the interests of our producers.

You raised a question in relation to patents: on the one hand, the title of this agreement clearly points in a different direction; however, on the other hand, our businesses are experiencing enormous problems in this regard and I would suggest that perhaps we could discuss this issue with you in detail on Monday when you attend the meeting of the Committee on International Trade.

Congratulations on what you have achieved. I would encourage you to show perseverance with regard to the outstanding issues. I look forward to the day when this House can decide whether to approve or reject the agreement on the basis of the final wording.

 
  
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  Kader Arif, on behalf of the S&D Group. (FR) Mr President, Commissioner, ladies and gentlemen, we are clearly faced with a text whose complexity troubles many of us and, even more, in my opinion, the citizens of Europe. Commissioner, I asked for transparency and you responded. Today, I am somewhat concerned.

Indeed, as I see it, beyond the purely technical issues, the main risk is that of the direction we are beginning to take with regard to this increasingly complex relationship between individual freedoms and the Internet. The world is changing rapidly, and we are all aware of this. We are all aware of the revolution taking place in access not only to information but also to culture via this tool.

In today’s world, where such access is immediate and free, traditional reference points are being undermined. Our most complex task is, therefore, to define new regulations, because regulation is necessary not only to protect artists and rights holders; but I do not want to see individual freedoms ignored.

As regards the protection of freedoms, one of the most important of which is the protection of the right to privacy, one of my main concerns is the possibility afforded by the Anti-Counterfeiting Trade Agreement (ACTA) of travellers’ personal effects and baggage being checked at borders. Does this mean that our mobile telephones, our MP3 players and our computers may be searched by customs authorities looking for illegally downloaded files?

According to the Commission, this is just a possibility, because the precise term used in the text is not binding. It is said that the Member States may choose whether or not to allow their personal luggage to be searched. However, let us get serious here for a minute. How can one expect such wording not to be seen as incitement to carry out such checks? Do you really think that a government, especially if it is pressurised to some extent by its music industry – and I cite this example deliberately – will not take this opportunity afforded by ACTA to move its national legislation towards increased screening of passengers entering its territory?

Another problem is that, if it is proved that the files held by a private individual are for commercial use, punishment is automatic. However, who determines whether the files we hold are of a commercial nature or not? Some may say that a person with 500 songs on his or her MP3 player necessarily has commercial objectives, but why would others deny themselves the opportunity to fix this limit at 300, 100, 50 or 10? In fact, for an ill-intentioned person, all it takes is to illegally download a single film in order to make thousands of copies of it, and that then becomes commercial activity.

Finally, punishment will be meted out by the courts of each country, but a European citizen arrested by the border authorities of a signatory country on the basis of particularly binding legislation will have no means of challenging it. Is it your wish that such an abuse be possible? Was it not the responsibility of the Commission precisely to do everything it could to ensure that the agreement prohibits searches of personal effects?

I have deliberately raised only this issue this evening, but you have raised many more, which we will incorporate into the resolution I have requested and which will ordinarily be voted on in next month’s plenary. Commissioner, I would ask you to take account of the outcome of this vote, which will be in line with our commitment, that is, to take account of the word of the European Parliament before you sign the act.

 
  
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  Niccolò Rinaldi, on behalf of the ALDE Group.(IT) Mr President, Commissioner, ladies and gentlemen, the negotiations have been difficult, with strong opposing opinions as well as different interpretations of the consequences of this agreement. As far I as can make out, the current status of the negotiations provides for an imbalance in the treatment of geographic indications and marks, in favour of the latter, as well as the failure to act, in violation of Article 22 of the Agreement on Trade-Related Aspects of International Property Rights, on marks that use denominations protected by geographical indications. ‘Parmesan’ – one of a number of possible examples – can be freely produced as ‘Parmesan’ in the United States and Australia and exported to China or elsewhere in direct competition with European products, one of the strengths of which is geographical indications. Consequently, European products seem to be propping up unfair competition without any effective protection from the Anti-Counterfeiting Trade Agreement. I should like a clarification in this regard.

‘Parmesan’ means ‘from Parma’, not Australia or the United States, and this applies equally to all European geographic indications. We must be careful because if, in the course of 21st century globalisation, in a few years’ time, we no longer have our geographic indications, it will partly be because of today’s mistaken choices and we shall lose an enormous piece of our identity. In this regard, if all that were permitted by the ACTA, the agreement would be unacceptable.

There is also the question of the Internet, as already mentioned. The European Union is in favour of a society of widespread knowledge, open to all, and the ACTA must not in any way constitute a restriction on the freedom of access to the Internet. Much has been gained on this issue. The Commissioner has given his important assurances, but it would be unacceptable if the acquis communautaire were tarnished, as still appears to be the case, by the possibility of legal injunctions provided for by Article 2, and by the possibility of criminal sanctions, including for individual users, as provided for by Article 2(14)(1).

I appreciate the highly important assurances on access to medicine for developing countries, but we know that the list of countries adhering to the ACTA is very limited and excludes the great powers of counterfeiting, in Asia, in particular, but not only there. So for this reason, given everything we have to lose on geographic indications and risks on the Internet, the impression – for now – is that the agreement represents only a disadvantage and on this basis, perhaps it is better to let it drop.

 
  
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  Jan Philipp Albrecht, on behalf of the Verts/ALE Group.(DE) Mr President, Commissioner°De Gucht, it is obvious that the ACTA agreement negotiated will shortly be adopted. This is an agreement that entails a whole series of commitments by the contracting parties in strengthening the enforcement of intellectual property rights. We, as Members of the European Parliament, will soon be asked by you, the Commission, to approve this agreement. However, for months now, Parliament has made it clear that a number of the declarations of intent made by the EU within the ACTA agreement run the risk of going beyond current EU law. Not only is it unclear whether sufficient competence exists for this kind of trade agreement, involving as it does provisions such as punitive measures or intervention in fundamental rights, we also lack information on the extent to which ACTA will necessitate the introduction of illegal measures in the EU. For this reason, ACTA will have to be sent back to the negotiating table. And yet you are willing to sign up to the agreement now. That is why I would ask you firstly: Have you already signed? If not, when do you intend to sign? Secondly: When will we receive a detailed impact assessment on the extent to which ACTA could affect fundamental rights within the EU? I look forward to hearing your answers.

 
  
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  Syed Kamall, on behalf of the ECR Group. – Mr President, I think we should start off by welcoming some of these statements that were made this evening and the fact that, following the Tokyo Round, the Commission released the text to the Parliament, which will ultimately be in a position to give consent or not to these agreements. I think the move towards transparency is something which should be welcomed across the Parliament. After all, that was one of the areas of consensus across the Parliament – we may have disagreed on certain elements, but we agreed on more and more transparency.

An increase in transparency means that we reduce false speculation about the content of the negotiations, but also, to be fair, highlights the positive role played by the Commission in trying to persuade the negotiating partners of the need for greater transparency. I think we played a role in this Parliament in putting pressure on the Commission, so it, in turn, can talk to its negotiating partners about the need for greater transparency.

There are obviously differences of opinion in this House on intellectual property rights. It is clearly a key issue for copyright and trademark holders. ACTA, I hope, is an important step in terms of enforcement among all active parties and builds on the TRIPS agreement of the mid-1990s.

Personally, I think a distinction should be made between the digital world and the world of atoms; in a world of increased processing power, increased storage and increased bandwidth, you see a tendency towards a price of zero and many in the music industry, for example, have failed to react. I understand from speaking to legal experts, however, that it is very difficult to codify that in an agreement.

When it comes to the production of generic medicines, I am glad that ACTA protects copyrights and trademarks while excluding patents from border measures, so you avoid the seizure of generic medicine in transit through the EU. But I do have a question since the Commission was not responsible for negotiating on behalf of the EU when it came to the criminal enforcement chapter which was dealt with by the Council on behalf of Member States. How, when we have this debate about concerns over the criminal sanctions, do we intend to reconcile the two different negotiations between the civil and the criminal chapter?

It is a question for you, Mr Commissioner. You can shrug, but it will be interesting to hear your perspective on this.

 
  
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  Helmut Scholz, on behalf of the GUE/NGL Group.(DE) Mr President, Commissioner, this week, US Senators Bernie Sanders and Sherrod Brown have written to the US Patent and Trademark Office to demand a thorough check to ensure that the wording of the negotiated ACTA agreement can be reconciled with existing US legislation. Be assured that we in this House are fulfilling our duty by examining the agreement in the context of the laws of the European Union. My group favours adopting a thorough approach and taking as much time as necessary, even though you have once again offered very detailed answers to the questions regarding the acquis communautaire. This is because the questions that we were able to ask the Commission in the debriefing sessions which you recently offered us after the negotiations, and for which I would like to thank you, were not really answered to our complete satisfaction. Your chief negotiator often gave us the feeling that we were – if I might express myself in colloquial terms at this point – a bit like God-botherers who sought to question holy writ, rather than dealing with the concerns we voiced on behalf of the citizens of Europe.

Nonetheless, some of our original criticism with regard to the aspects relating to the Internet has had some effect and some of the more harmful proposals have been dropped.

 
  
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  Angelika Werthmann (NI).(DE) Mr President, the ACTA negotiations seem to be more or less concluded. The wording of the latest version of the agreement already reads like legislative text as it applies in individual Member States. Thus, the ACTA agreement will leave the existing legal situation in Europe almost unchanged. The original aim of the agreement was to improve enforcement. However, I am unable to identify any specific solutions in this regard from the proposal. Prior to publication, it became known that the disputed points were to be dropped. However, this version does not seem to take adequate account of the various conflicting interests. For example, Article 2(2) of the agreement reads: ‘Procedures adopted, maintained, or applied to implement this Chapter shall be fair, equitable and provide for the rights of all participants subject to procedures to be appropriately protected’. The chapter on temporary measures contains no explicit reference to the right to due legal process, neither is there a provision for verifying the need to destroy counterfeit products.

Last but not least – we hear that the last points of the negotiation are to finalised by e-mail. However, these last points include the area of application of the agreement as a whole. Surely this should be defined before we start on the formulation of the content. Perhaps this would then also give rise to some practical solutions in the agreement itself.

 
  
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  Cristiana Muscardini (PPE).(IT) Mr President, ladies and gentlemen, I should like to thank the European Commission and, in particular, Commissioner De Gucht, for the tough negotiations it is carrying out with the United States, a task that aims to find a point of convergence on an agreement that unfortunately seems to be never ending.

We are still far from a solution to the problems of intellectual property, which continue to be the subject of a dispute between two blocks that differ both economically and politically. Europe must continue to concentrate on two fundamental points. It must be compulsory for European geographic indications to be protected in both civil and customs terms, as these are today suffering damage that affects not only the agro-food industry, whose counterfeited products suffer unfair competition through the use of names that copy and evoke familiar European brands, but also damages industries operating in the design and fashion sectors. This damages businesses, intellectual property, research and – as always – the consumer.

A second central point is the need for common rules controlling online sales: the sale of films, books, music, medicines and millions of other counterfeited goods continue to take place on the Internet, without any controls. The European Union must send a clear message to the rest of the world: the Anti-Counterfeiting Trade Agreement must be a bulwark against all counterfeiting.

 
  
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  Emine Bozkurt (S&D). (NL) Mr President, Commissioner, international agreements have to be submitted to the European Parliament for approval. As Members of Parliament, it is vital that we are able to exercise our right of veto as often as is necessary, but our work has now been made virtually impossible. Time and again, we have been forced to ask the Commission to clarify the state of play in the negotiations on ACTA. However, we are constantly being fobbed off with words. First, we were reassured with the argument that the negotiations are far from over and now you have told us that this is merely an enforcement agreement and that no changes will be made to EU acquis or the law of Member States.

In that case, I would ask: what is then the added value of ACTA? You have said that it will neither harmonise criminal sanctions nor impose any indirect obligation, in terms of the ‘three strikes’ policy. However, we are standing here, talking yet again about the content of this draft agreement and, specifically, about the points which I have mentioned. Yet, every day, I receive messages from concerned citizens and companies and, still, there is a general consensus among the groups in the European Parliament that this draft agreement undermines the fundamental rights of our citizens and passengers from third countries. I will therefore put this question to you in no uncertain terms: what will be the specific benefits of adopting ACTA? Do, please, persuade us that this text from 2 October is a positive and necessary thing.

I also have a very specific question for you, Commissioner: when will the negotiating parties meet again to discuss ACTA? Which parties have failed to agree to it? Why was that? One question after another, Commissioner. Once again, we have been told that the finishing touches have not yet been added to the agreement. How can we agree to an agreement that is being negotiated in backrooms?

 
  
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  Marietje Schaake (ALDE). – Mr President, yesterday, the Commission adopted a strategy to mainstream the legally binding EU Charter of Fundamental Rights. As liberals, we proposed this, so this is music to my ears.

Today, the Commission posted information on ACTA after the end of the last negotiations three weeks ago. The site has a paragraph called ‘positive aspects of ACTA’, but there are also some questions that might be labelled otherwise.

Firstly, do trade agreements or law enforcement treaties – which I think ACTA really is – also fall under the mainstreaming of fundamental rights? Will the Commission do an assessment?

Secondly, is the Commission willing to go back to the negotiating table if fundamental rights are at risk through ACTA? Will the Commission wait to finalise the negotiations to take the Parliament’s resolution of early next year into real account? As far as I know, no country has put its initials on a single page of ACTA.

When it comes to the Internet, ACTA even breaks new ground, the statement reads. The preamble states that ACTA seeks ‘to promote cooperation between service providers and rights holders’. Article 2.18.3 goes on: ‘each party shall endeavour to promote cooperative efforts within the business community to effectively copyright infringements. This implies extra-judicial measures and challenges the division of power’. Article 2.18.4 states that the competent authority, not necessarily judicial, should have the power ‘to order an online provider to disclose expeditiously to a rights holder information sufficient to identify a subscriber whose account was allegedly used for infringement’.

Besides pointing to the word ‘allegedly’, I would like to stress that Internet service providers are concerned that they will have to start enforcing the law. So, some room needs to be made under the heading ‘negative aspects of ACTA’ to assess the fundamental rights aspect that ACTA still has in the current draft and that the Commission from now on is legally obliged to mainstream.

 
  
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  Eva Lichtenberger (Verts/ALE).(DE) Mr President, Commissioner, since the text of the ACTA agreement has become available, we find that it gives rise to far more questions than answers. This is partly due to the very unclear and vague legal terminology used in places, which seems to rule nothing out and everything in. Let me just touch on one key issue here, which is the call for cooperation between service providers and rights holders in implementing rights. Are we to take this to mean that, for example, Warner Brothers would work together with ISPs almost like deputy sheriffs? How would this work in detail? Would it mean streaming the Internet in order to identify violations? This confusion stems from the fact that, for example, the term ‘private use or commercial use’ is not adequately defined and a common definition has not been found. I believe this to be an extremely problematic issue because it entails the privatisation of legal rights.

As has already been mentioned, yesterday, the Commission gave an undertaking that there will be an impact assessment in relation to civil rights in any new provisions. When can we expect this impact assessment in relation to the ACTA agreement? What can we expect from this assessment and when will we actually be able to read it? This is decisive in enabling us to evaluate this agreement.

 
  
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  Sajjad Karim (ECR). – Mr President, we as a Union have been floundering in the dark in meeting the challenges that have been posed in this new Internet age. Of course, we are not alone and many of our partner nations are in the same position, but we have all got to come together and work towards harmonisation of anti-counterfeiting enforcement.

The protection of copyright is imperative, but a balance has to be struck to ensure that freedom of expression and innovation are not inhibited. We are keen to ensure that the balance reached in the Gallo report is properly recognised in the agreement to encourage growth, competitiveness and innovation to flourish, whilst providing necessary protections for rights holders. There is no one-size-fits-all approach in the enforcement, or approach to enforcement, in the agreement. Flexibility for our Member States is recognised; we support that. ACTA, as the Commissioner said, is a good first step to tackling counterfeit groups and piracy on the Internet and wider afield.

For the EU, we expect a detailed copyright proposal and a thorough impact assessment which the European Parliament will review, analyse and scrutinise on behalf of our citizens.

 
  
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  Christofer Fjellner (PPE).(SV) ACTA, or the Anti-Counterfeiting Trade Agreement as it stands for, is, of course, highly controversial. It has been highly controversial here in the European Parliament, but also in Sweden, which I represent. I have been very critical, particularly towards much of what I have seen as secretiveness; the fact that texts have been kept secret, among other things. This has created a feeling and an atmosphere in which myths surrounding the agreement could thrive. The most stubborn of all seems to be the myth that, as a consequence of ACTA, customs will start to inspect ipods and computers. I heard this most recently here in plenary today. However, now that we have all of the texts and everything is on the table, I can see that it was wrong and just a myth. I believe that if Shakespeare had written a play about the debate surrounding ACTA, he would have named this one ‘Much Ado about Nothing’, too.

The Commission has promised that ACTA will not change anything in EU legislation and, on reading this, I understand the same. The fact that there will be no changes to legislation means that there will be no changes to citizen’s everyday lives and this will not change citizen’s involvement with the Internet, for example.

However, it does not mean that ACTA is not important or that it is unnecessary, as someone said here in this Chamber. On the contrary, ACTA will create a global gold standard for the protection of intellectual property. This is important and it is in the interests of both Sweden and Europe. It will reduce the number of conflicts and, if there is something that I hear when I meet Swedish companies, it is, above all, the need to protect patents and the intellectual property rights that they have. This is good, particularly outside Europe. I feel reassured and confident now that I have read the negotiation documents that we have received. I am certain that citizens will feel that way, too. This means that I feel quite confident ahead of the continued debating of this matter in the European Parliament.

 
  
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  Françoise Castex (S&D).(FR) Mr President, Commissioner, as initiator of the written declaration on the Anti-Counterfeiting Trade Agreement (ACTA) along with my fellow Members, Mr Lambrinidis, Mrs Roithová and Mr Alvaro, I should first of all like to thank you for the efforts you have made to secure transparency and consensus, particularly in recent weeks. For the moment, my thanks will stop there, because this text remains highly ambiguous on key issues.

Firstly, you say, Commissioner, that this text will not change the EU acquis, but what about the new criminal sanctions for the crime of aiding and abetting copyright infringements, which, however, you wish to distinguish from counterfeiting?

How can we not think of what is happening in France with the threat of the Hadopi law and potential sanctions against the neutrality of technical intermediaries. The fact that this text was negotiated by the Council places it outside the Commission’s scope of negotiation and therefore, perhaps, of the EU acquis.

Secondly, it would seem that the ACTA committee has the possibility of integrating amendments into texts. You will therefore understand our concern at the prospect of adopting a text that might be amended. Once again, Commissioner, it is difficult for us to present the future ACTA Secretariat with a blank cheque and the reservations we will formulate on the interpretation of the text when we vote on the resolution will dictate our position on the ratification of this text.

 
  
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  Christian Engström (Verts/ALE). – Mr President, on 10 March this year, this House adopted, by an overwhelming majority, a resolution saying, among other things, that the agreement should not make it possible for any so-called three-strike procedures to be imposed. This is because we do not want Internet service providers (ISPs) to start acting as private police forces and be forced to take on that role.

The Commission has repeatedly said in various oral statements that this is not the case. I welcome those statements. However, when you look at the text, it is already in the preamble, ‘desiring to promote cooperation between service providers and rights holders with respect to relevant infringements in the digital environment’. Then, in Article 2.18.3, as Mrs Schaake quoted, ‘shall endeavour to promote cooperative efforts within the business community to effectively address corporate infringements’. If this does not mean three strikes, what does it mean?

It is all very well to talk about cooperation between rights holders and ISPs but what are the ISPs supposed to do? If they do not want to do it, what measures will be taken against the ISPs? I am very concerned that the language in this agreement – as Mrs Castex was saying –is so ambiguous that it is not really clear what it means. I still have the basic concerns that have been with us all along, and I would very much like to see a proper evaluation of the fundamental rights aspects of this agreement.

 
  
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  Jörg Leichtfried (S&D).(DE) Mr President, Commissioner, of course, the attempt to reach good international agreements is very praiseworthy and I freely admit that this is a far from easy task. Nonetheless, when considering such agreements, at some point we must stop and ask: who will benefit and who will suffer as a result? I get the feeling that in fact, it benefits just a few people who want to make a fat profit and who have little interest in upholding human rights, freedom of information, etc. and that it actually harms far more people than it genuinely benefits.

I am still not clear about the actual situation with regard to generics. Admittedly, there is not a lot that can be achieved through criminal penalties. However, we know that civil actions and the associated major compensation claims, etc. can inflict far more damage than criminal proceedings. Then the question of trademark protection versus origin markings arises. We have just had a discussion where it was stated that origin markings are gaining increasing importance and offer opportunities beyond the ambit of trademark protection. However, everything seems to have got hung up on the issue of trademark protection.

The idea of using Internet providers as a de facto private police force, something that has already been mentioned by other Members of the House, is a concept that I utterly reject. Who is going to control the providers? There is no duty to provide information and no data protection, as should really be the case with public bodies. These are all things that give me cause for concern. Furthermore, I do not know what these impact assessments will achieve in terms of human rights and, above all, what the Commission will do if this House forms the impression that this is a watered-down solution and refuses to endorse it.

 
  
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  Judith Sargentini (Verts/ALE). (NL) Mr President, I can well imagine that the main purpose of this agreement might be to prevent the counterfeiting of handbags and watches. However, an agreement which states that the business community must cooperate in order to combat copyright infringement, now that is where it seems to me that things start to get a bit more complicated. If I may return to the subject of handbags, I take it that a tanner might have to ask a manufacturer of zips and buckles to check the identity of the people that are buying those bags? Are we, as authorities, then going to impose such a policing task on those kinds of companies? Now, that would be an ill-advised development and you have not given us any clarification of this point in your proposal.

I have heard you say, Mr De Gucht, that you fear that, if we drop patents from ACTA, we will have the pharmaceutical industry on our backs. I have a different fear, because ambiguities still exist as regards patents and border controls. That is not to say that something as embarrassing as the seizing of anti-HIV drugs in the port of Rotterdam will not happen again.

Put our minds at ease, Mr De Gucht, and test ACTA against fundamental rights. Yesterday, your Commission published a strategy to that effect. Reassure us that people in developing countries have a right to healthcare. Reassure us that Internet users will not be pried on by commercial companies and that their freedom will not be limited.

 
  
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  Monika Flašíková Beňová (S&D). (SK) The ever-growing number of counterfeit and pirated products on the international market increases the possibility of a threat to the sustainable development of the world economy, and undoubtedly also brings financial losses to the original manufacturers as well as infringing on the intellectual property of authors and subjects involved in manufacturing and production. It also clearly presents a risk to consumers and is the cause of job losses in Europe.

The idea of a multilateral agreement to combat piracy and counterfeiting may be an effective mechanism for curbing such activities. However, I join my colleagues in emphasising the need for transparency and better credibility in any such negotiations and agreements. I consider it equally essential that a balance be struck between the rights we are interested in protecting and the rights that are essential in society. The enforcement or protection of the rights of some must not encroach on the rights and justified interests of others. I refer, in particular, to the provisions of the agreement which intend to criminalise completely harmless ordinary users but will not penalise the big players. It seems absurd to me that during border controls, technical equipment containing audio and video recordings for personal use may be confiscated. In our legal tradition, copying for personal use without commercial purposes is common and not illegal. Commissioner, why should a student, for example, be unable to make a copy of a book he needs for school?

Once again, I stress that we need to give the green light to acceptable copyright protection. However, behind the current version of ACTA is the work of the lobbyists of US recording companies who, in their pursuit of profit, intend to terrorise and criminalise a large part of our society, and the citizens of the Member States of the European Union in particular. I consider the astronomical fines, inappropriate checks, negotiations on the agreement behind closed doors, and so on disproportionate. Therefore, I would like to ask the European Commission to resist the enormous pressure from the lobbyists and prepare a rational and well-balanced alternative to the current version of ACTA.

 
  
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  Zuzana Roithová (PPE). (CS) Through our written statement, we were striving for transparency in negotiating ACTA, and an assurance about protection of personal data and the EU acquis. I am pleased that the draft agreements have finally been published and that most of the problems that we criticised have disappeared from the agreement. However, it would be a failure for the Union if, for example, protection for geographical indications were cut back; for example, if non-European countries were not required to protect Karlovy Vary waffles, or the aforementioned champagne, throughout their territory. It is not enough merely to control the borders. I ask the Commissioner for clarification on this.

However, I also have doubts about the effectiveness of the agreement given that the biggest global counterfeiters from Asia are not parties to it, which, in addition, may cause trouble for entrepreneurs and consumers when implementing the agreement. Finally, I would ask the Commissioner or the Commission to present to us a detailed analysis of the impact of ACTA on the European Union.

 
  
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  Karel De Gucht, Member of the Commission. – Mr President, first of all, there have been several interventions claiming that the implementation of ACTA would lead to limiting civil liberties, and several pointed out the control of laptops, or of air passengers at borders, for example.

The joint declaration of 16 April issued by all the ACTA parties is quite clear. There is no proposal to force ACTA participants to require border authorities to search travellers’ baggage or their personal electronic devices for infringing materials.

ACTA is about tackling large-scale, illegal activity and pursuing criminal organisations. It is not about limiting civil liberties or harassing consumers. ACTA will be in line with the current EU regime for enforcement of IPRs, which fully respect fundamental rights and freedoms and civil liberties, such as the protection of personal data.

One example is the di minimis clause in the 2003 EU customs regulation that exempts travellers from checks if the infringing goods are not part of large-scale traffic.

EU customs, frequently confronted with drug trafficking, weapons or people, have neither the time nor the legal basis to look for a couple of pirated songs on an iPod or laptop computer, and we have no intention of changing this.

We will not change this, and we will ensure that ACTA parties can continue to apply such an exemption. However, we cannot impose the de minimis exemption as an absolute obligation, because some Member States acting under national rules have kept the authority to carry out certain controls of passengers.

Reference has been made again to the three-strike law or the HADOPI law in France which makes this possible. However, this is a national rule and the European Union does not have the authority to make a national state change this.

Several have also been asking for an impact assessment on fundamental rights, an impact study on privacy and an impact study on the acquis communautaire.

I have made several statements in this plenary that there has been no infringement whatsoever of fundamental rights or the acquis communautaire in any way, and I must say that in the three debates that we have already had in this plenary, none of you has given an example of problems related to fundamental liberties. Nobody has pointed to an infringement of the acquis communautaire. Nobody has been able to give an example. If you give us examples, we will look into them.

As for negotiating behind closed doors, Parliament has been asking for more transparency on the ACTA negotiations. It is the Commission that has made sure that this happens; that you have the text before you that was negotiated in Tokyo, and that you got it a couple of days after it was finalised. You have it also with the reserves that still exist; three on the part of the European Union, three on the part of the United States. You have the result of the negotiations. How can you say that this has happened behind closed doors?

The question has been put to the Ombudsman. Maybe you do not trust me. I am the Commission. Maybe you do not trust the Council. Maybe you do not trust your governments. I have detected from a lot of speeches here that your trust in national governments is not very deep, but I think you at least trust the Ombudsman. The Ombudsman has said very clearly that we can keep documents confidential, and what we have been doing is making a large additional step in the direction of transparency.

You would expect that when you do that, you would be applauded. At least there would be some consideration for the fact, but some of you simply continue to say that we negotiate behind closed doors and that there is no transparency. So what is the use in making an effort to have more transparency if afterwards, you still continue to say that there is no transparency? Maybe I would be better investing my time in something else.

As regards the possibility of the European Commission agreeing on a final text: in the Lisbon Treaty, there are, in fact, very clear rules on how international agreements are negotiated, by whom and how they are concluded and ratified, including the important role of the European Parliament.

There are also clear rules in the framework agreement as to how Parliament must be informed and heard during the negotiating process. I think we have respected these rules scrupulously. It is the Commission’s prerogative, as a negotiator, to determine the point at which negotiations are technically finalised and at which the agreement can be initialled. The agreement is not yet initialled and you have the possibility tonight to make your remarks before we even do the initialling and before we even decide to initial the agreement as such. We have not yet made a decision in the Commission on what we are actually going to do, because we still have a couple of reserves that we want to settle with the United States before making up our minds.

The initialling of the agreement is part of the Commission’s prerogatives and it does not definitely bind the Union. The agreement will become definitive once the European Parliament has given its consent.

So let us respect the treaty and let us respect the framework agreements. In the meantime, we will continue to inform and engage with you as stipulated in the framework agreement.

By the way, according to the treaty, it is the Council which authorises the signature of the agreements, but Parliament always has the last word. It has to ratify this agreement and if consent is refused, there is simply no agreement at all.

So be a little bit patient. There is no initialling yet. Once there is initialling, you have the translation, you have the check by the lawyer-linguists, and then it comes to the Council for signature and to Parliament for ratification. So no decision whatsoever has been taken at this moment in time, and you have another possibility tonight to make known all the comments that you have on your mind.

Some have also been asking how the EU would benefit by entering into such an agreement if it will go no further than its current laws and if, furthermore, other countries like the US also claim that it will not change domestic law.

This is not about substantive law. This agreement is about the enforcement of existing law, and that is why I have repeatedly stipulated that we are not going to change the acquis communautaire. The acquis communautaire is about substantive law and we are not changing that. An international treaty that would adopt standards similar to those of the EU, but also to those already in place in countries like the US or Japan, would still be a most valuable contribution to the current prevailing international standard as defined by the WTO TRIPS agreement.

Our goal is to promote ACTA standards to key emerging partners, namely through our future trade agreements, but also in multilateral venues. That being said, several ACTA parties have taken the momentum created by the ACTA negotiations to revise their domestic legislation along the agreed lines.

As far as I am aware, for instance, both Japan and Canada are in the process of reviewing their Internet enforcement regimes. Moreover, it is often overlooked that 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 four to five years, we believe that ACTA can also improve those important aspects of the fight against IPR infringements.

We consider that the US enforcement system is generally effective and efficient in the protection of certain intellectual property rights. The Commission has stressed that ACTA is not a disguised means to circumvent their domestic legislative process and to devise their current laws and so has Parliament. It is understandable that US officials stress the same line.

Let me add that the principle of cooperation between rightholders is already in Article 15 of the e-Commerce Directive since 2003, so this is not a new concept. It is in the e-Commerce Directive and we are simply referring to that. We are referring to the existing EU law.

Let me further say that what is often overlooked in the debate on ACTA are the number of jobs of EU citizens that relate to intellectual property rights and we often discuss jobs on all sides of the House.

Millions of jobs in Europe depend on respect for intellectual property rights. Counterfeiting is a serious attack on European industry and on the European economy and on European innovation, because we are an innovation-based economy.

What we are really talking about is jobs. And I must say that I am a little bit surprised that in the three discussions that we have now had in this plenary, this has never in fact been mentioned. This reference to jobs has never been made. The references that are made are to fundamental rights and I am very sensitive to that, but without any confirmative example.

The reference is made to controls at the borders where it is clear that ACTA adds nothing to what already exists. There is a reference to privacy and I see no reason why privacy would be under attack. There are references to a kind of nebulous liberty and liberties that you think are under attack, but you do not give any examples of that. On the other hand, what is very clear, and what is documented in all kinds of impact studies that have already been done by the way by the Commission, on all kinds of items, is that a lot of our jobs are linked to intellectual property rights and that is one of the reasons we attach such importance to that topic. I am a little bit surprised that this is very rarely mentioned by Parliament.

 
  
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  President. – The debate is closed.

The vote will take place at the next part-session.

Written statements (Rule 149)

 
  
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  Ioan Enciu (S&D), in writing.(RO) I wish to welcome the progress which has been made in the ACTA negotiations. This agreement is an absolute necessity for establishing common international standards on the enforcement of intellectual property legislation.

However, I must point out that sanction measures against intellectual property infringements must comply with the principle of proportionality and balance between the gravity of the acts committed and the sanctions applied. In this case, I am referring, in particular, to intellectual property infringements in the digital media and Internet where a clear difference ought to be made in terms of treatment between large-scale piracy for commercial purposes and isolated, random cases of intellectual fraud.

Furthermore, regardless of the seriousness of the offences committed, the agreement should focus particular attention on protecting freedom of expression, the right to a fair trial and confidentiality.

 
Last updated: 15 December 2010Legal notice