Document stages in plenary
Document selected : B7-0620/2010

Texts tabled :

B7-0620/2010

Debates :

Votes :

PV 24/11/2010 - 8.6

Texts adopted :


MOTION FOR A RESOLUTION
PDF 176kWORD 101k
See also joint motion for a resolution RC-B7-0617/2010
17.11.2010
PE450.454v01-00
 
B7-0620/2010

to wind up the debate on the statement by the Commission

pursuant to Rule 110(2) of the Rules of Procedure


on ACTA


Kader Arif and Véronique De Keyser on behalf of the S&D Group

European Parliament resolution on ACTA  
B7‑0620

The European Parliament,

–   having regard to Articles 207 and 218 TFEU,

–   having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,

–   having regard to the Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union,

–   having regard to the conclusion of the last round of negotiations, on 2 October 2010, of the Anti-Counterfeiting Trade Agreement,

–   having regard to the public release of the final ACTA Text, on 15 November 2010,

–   having regard to its Resolution of 18 December 2008 on ‘the impact of counterfeiting on international trade’ (2008/2133(INI)),

–   having regard to its resolution of 10 March 2010 on transparency and the state of play of ACTA negotiations,

–   having regard to its Written Declaration 0012/2010 on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA),

–   having regard to the Plenary Debates on 8 September and 20 October 2010 on the Anti-Counterfeiting Trade Agreement,

–   having regard to the European Parliament decision of 20 October 2010 on the revision of the framework agreement on relations between the European Parliament and the European Commission,

–   having regard to the Inter-Institutional Agreement on Better Law-Making between the European Parliament, the Council and the Commission (2003/C 321/01),

–   having regard to the European Ombudsman’s decision on complaint 90/2009/(JD)OV relating to access to ACTA documents,

–   having regard to the opinions of the European Data Protection Supervisor (EDPS) on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement , and the letter from the Data Protection Working Party to the European Commission,

–   having regard to the practice named ‘Friends of the Presidency’ aimed at discussing ‘any criminal law aspects of the agreement that may arise’,

 

–   having regard to Directive 2000/31/EC of European Parliament and Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce),

–   having regard to Directive 2002/58/EC of European Parliament and Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009,

–   having regard to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),

–   having regard to the Council Conclusions on Policy Coherence for Development (PCD),

–   having regard to WTO Dispute DS409, European Union and a Member State - Seizure of Generic Drugs in Transit,

–   having regard to WTO news release on the 8-9 June 2010 TRIPS Council,

–   having regard to Rule 110 of its Rules of Procedure,

Lisbon Treaty

A.  whereas the EU has exclusive competence in the area of the Common Commercial Policy (CCP); whereas as a result of the entry into force of the Lisbon Treaty, Parliament will have to give its consent to the ACTA text, prior to its entry into force in the EU,

State of play of the negotiations and negotiators

B.  whereas in 2008 the European Union and other OECD countries opened negotiations on a new plurilateral agreement designed to strengthen the enforcement of Intellectual Property Rights (IPRs) and combat counterfeiting (Anti-Counterfeiting Trade Agreement - ACTA),

C.  whereas the 11th and latest round of the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) was concluded in Tokyo, Japan on 2 October 2010,

D.  whereas the ACTA negotiators made public the consolidated text on 6 October 2010 and thereafter, the Commission briefed Parliament; whereas the Commission publicly released the final ACTA Text on 15 November 2010; whereas a technical meeting to finalise the legal scrub will take place in Sydney (30 November - 3 December (or if necessary 4 December) 2010),

E.  whereas Council representatives have attended ACTA negotiation rounds alongside with Commission representatives,

F.  whereas only 11 countries (EU being counted as a country) and amongst them only two developing countries (Morocco and Mexico) participated in the negotiations,

G.  whereas the aim of the negotiating parties is to extend ACTA to developing and emerging countries; whereas important trading partners such as India, Brazil and China have asserted at the WTO TRIPS Council that ACTA may conflict with the TRIPS Agreement and other WTO agreements,

H.  whereas the definition of counterfeit in the TRIPS agreement is only related to wilful commercial scale trademark infringement (TRIPS, Part III, Section 4, Article 51)(1),

Acquis communautaire

I.   whereas the Commission as guardian of the Treaties is obliged to uphold the acquis communautaire when negotiating international agreements affecting legislation in the EU,

J.   whereas the Commission has referred to the decision of the Ombudsman to justify ACTA is negotiated as a trade agreement and not as an enforcement treaty; whereas the Ombudsman appraised that ‘the conclusion of the ACTA may indeed make it necessary for the EU to propose and enact legislation. In that case, the ACTA would constitute the sole or the major consideration underpinning that legislation, and citizens would have a clear interest in being informed about the ACTA’,

Fundamental Rights

K. whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC (as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009), in Directive 2009/136/EC and Directive 2009/140/EC on Electronic communications networks and services, and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,

L.  whereas the Commission stated in its Communication on 19 October 2010 that the ‘Union’s action must be above reproach when it comes to fundamental rights’ and that the ‘Union must be exemplary in this respect’; whereas the Commission stated in Plenary on 20 October 2010 that ACTA ‘is not yet initialled’ and that ‘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’;

M.  whereas no provision in the ACTA Agreement must be interpreted to create a precedent or to allow for the present or future derogation from, or the amendment of the acquis that could lead to the weakening of, the protection of fundamental rights under EU law, and the Commission and Council should explicitly state their agreement with this principle,

Geographical indications

N. whereas the Commission has repeatedly affirmed the importance of enforcing the protection of geographical indications (GIs); whereas it has been agreed by parties that ACTA will provide for the enforcement of all categories of intellectual property recognised under Part II of the TRIPS Agreement, including GIs,

 

Criminal enforcement and sanctions

O.  whereas in 2007, the Commission launched a questionnaire addressed to Member States in order to conduct a study to verify whether criminal sanctions are essential to ensure the effective implementation of community law in the area of intellectual property rights, as required by Art 83.2 TFEU,

P.  whereas the Criminal Enforcement section of ACTA concerns provisions on criminal procedures, criminal liability, criminal offenses, criminal enforcement and penalties; whereas the Presidency of the Council has negotiated the criminal enforcement provisions in ACTA,

Q. whereas the written Declaration 12/2010 stressed that economic and innovation risks must be evaluated prior the introduction of criminal sanction where civil measures are already in place,

R.  whereas ACTA article 2.14.1 contains a definition of commercial scale: ‘For the purpose of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct economic or commercial advantage’,

S.  whereas ACTA footnote 9 says: ‘Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to exportation and importation of pirated copyright or counterfeit trademark goods by providing for distribution, sale or offer for sale of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties’,

T.  whereas the working of art. 2.5 1 and 2.5.1a is extremely worrying and opens the door to measures that threaten the privacy and data protection rights of citizens,

Access to medicines

U.  whereas the Trade Commissioner invited the Parliament during the 20 October 2010 plenary to express its opinion on the outstanding issue of whether to include patents in the Civil Enforcement sections; whereas ACTA negotiators have asserted that ‘ACTA will not hinder the cross-border transit of legitimate generic medicines’; whereas Parliament in its resolution and written declaration has declared that any measure aimed at strengthening powers of cross-border inspection and seizure of goods should not harm global access to legal, affordable and safe medicines,

IPRs in the digital environment

V. whereas the e-commerce directive takes the view that internet service providers should not bear liability for the data they transmit or host through their services to an extent that would necessitate prior surveillance or filtering of such data; whereas EDPS’ opinion on ACTA warns that internet service providers (ISPs) might insert ‘clauses in their customer’s contracts allowing the monitoring of their data and the cutting of their subscriptions’,

W. whereas ACTA parties have committed to upholding obligations under Article 7 of the TRIPS Agreement to contribute to the promotion of technological innovation; whereas fundamental EU policies related to interoperability rely on provisions in the acquis communautaire (in particular in the Directive 91/250/EEC) supporting reverse engineering and circumvention,

X.  whereas a number of important safeguards are included in the ACTA Text in both the preamble and substantive provisions of the text; whereas Article 1.2 of the agreement states that ‘[E]ach Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice’,

Y.  whereas international and domestic laws currently stand, copyright and related rights allow the right holder to prevent certain acts such as reproductions, fixations, adaptations, the distribution of copies and the communication to the public (including making a work available to the public in an interactive manner). None of these restricted acts should be confused with a right to prevent use (e.g., reading, viewing) of a work. Any attempt to expand copyright to cover ‘use’ would muddle the distinction between IP and conditional access. The Commission cannot follow an approach where controlling access to services is mixed with the infringement of IP rights,

Z.  whereas Vice-President Kroes recently declared in Avignon: ‘It may suit some vested interests to avoid a debate, or to frame the debate on copyright in moralistic terms that merely demonise millions of citizens. But that is not a sustainable approach. [...] Instead of a dysfunctional system based on a series of cultural Berlin walls, I want a return to sense. A system where there is scope to create new opportunities for artists and creators, and new business models that better fit the digital age.’, and UK PM David Cameron announced substantive modifications of British IP legislation, inter alia importing the concept of ‘fair use’,

ACTA Committee

AA. whereas the Institutional Arrangements in ACTA confer the ACTA Committee with authority related to, inter alia, the implementation and operation of the Agreement, the amending of the Agreement, non-governmental participation and decisions regarding the Committee’s rules and procedures; whereas Article 21 TFEU guides the Union to seek the advancement of democracy;

1.  Takes note of the Commission’s efforts to improve transparency and its commitment towards protecting the EU’s innovation and competitiveness; urges the Commission, in the spirit of the revised framework agreement, to fully take into consideration the opinion of the European Parliament before initialling the Agreement;

Acquis communautaire

2.  Supports the Commission’s ambition to ensure the full enforcement of the acquis communautaire;

3.  Asks the Commission to explicitly confirm, in due time before the Parliament consent procedure commences, that ACTA’s provisions leave unaffected the acquis communautaire, in particular provisions contained in Directive 95/46 ( the ‘Data protection’), Directive 91/250/EEC (the ‘Software Directive’) , Directive 2001/29/EC (the ‘Information Society Directive’) , the Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce), the Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 and the Directive 2004/48/EC on the enforcement of intellectual property rights;

4.  Asks the Commission to explicitly confirm that it shall not, now or in the future, propose to alter the aquis in order to bring it in line with any of the non-mandatory provisions of the ACTA Agreement in any way that could result in the lowering of fundamental rights protections in the EU;

Legal basis

5.  Welcomes that since the entry into force of the Lisbon Treaty, the EP powers have been largely extended in the CCP, and in particular the EP has to give its consent on all trade agreements concluded by the EU;

6.  Asks the Commission to clarify the division of competence between the Council and Commission regarding the Criminal Enforcement section of ACTA, including in relation to its initialling; insists that the Parliament be presented with evidence that the legal base for negotiating ACTA is fully compliant with the Lisbon Treaty before the initialling of the Agreement;

7.  Asks therefore to know on which legal arguments the Council and the Commission disagree on the format of the Treaty and is to take knowledge of the mandate that has been given to the negotiator,

Border Measures

8.  Urges the Commission to ensure the scope of the Agreement to be limited to the existing European IPR enforcement system against counterfeiting. The word ‘unjustifiably’ should therefore be kept out of Article 2.X;

9.  Is concerned by the content of article 2.X of section 3, which mentions the fact that travellers’’ personal luggage, even when the goods carried are of non-commercial nature, are covered by the agreement unless parties decide to exclude them ; considers that this article constitutes an incitation to the adoption by parties of stricter rules regarding checks of travellers’ personal luggage at borders, while on the contrary the Commission should have defended at the international level a greater protection of people’s fundamental rights, in particular the right to privacy;

Criminal enforcement and sanctions

10. Urges the Commission to publish the answers to the questionnaire launched in 2007 to verify whether criminal sanctions are essential to ensure the effective implementation of community law in the area of intellectual property rights and the study it conducted, and to take into account the answers to the questionnaire before initialling the Agreement;

11. Observes that ACTA allows judicial authorities to issue an order (i.e. injunction in Article 2.X) against a party, or a third party; Notes that this injunction power goes beyond the Intellectual property Rights Enforcement Directive, which only allows injunction ‘to prevent any imminent infringement’. In addition, third parties, according to this Directive, need to be involved in the infringement to be potentially subject to the judicial authority order;

12. Observes the definition of commercial scale in ACTA (Article 2.14.1) goes beyond the definition adopted on 25 April 2007, in its votes on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights - 2005/0127 (COD);

13. Observes the definition of commercial scale in Article 2.14.1 fails to meet the principle of proportionality;

14. Believes it not appropriate to extend criminal responsibility in a footnote as it is done in footnote 9;

15. Urges the EU negotiators to defend ‘may’ in article 2.14.3 (‘Each party may provide criminal procedures and penalties ...’);

16. Asks, therefore, the Commission to insist on replacing "shall" by "may" and, for reasons of clarity, replace (as well) the words "infringements of any intellectual property rights from occurring" by "counterfeiting from occurring";

17. Asks the Commission to convincingly explain and confirm that any criminal measures in ACTA will be limited to large commercial scale activities and that individual users not engaged in such activities cannot and shall not be subject to criminal prosecution under ACTA;

18. Stresses that in the absence of a meaningful impact assessment and ad hoc safeguard ensuring their proportionality in the text of ACTA, criminal measures should remain within the scope provided by both TRIPS and of the acquis communautaire;

19. Requests the EDPS to submit an Opinion on the most recent ACTA text;

Geographical indications

20. Urges the Commission to work actively towards ensuring the prosperity of European products in the world economy through effective enforcement practices in ACTA;

21. Regrets that the Agreement does not define ‘counterfeit geographical indications’ in its Article 1.X, as this omission might create confusion or at least complicate the tasks of the administrative and judicial authorities in the interpretation and enforcement of ACTA;

22. Disagrees with the position of the Commission, which claims having achieved important improvements regarding the protection of geographical indications; considers that, since geographical indications will remain unprotected in all countries which do not recognise them in their national legislation, progress in this field is unsatisfactory;

Fundamental Rights

23. Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;

24. Instructs the Commission to present to Parliament, before initialling the Agreement, a legal analysis of the meaning, legality and enforceability of ACTA’s desired policies regarding cooperation between service providers and right holders, particularly in reference to how cooperative efforts within the business community will not limit fundamental rights of citizens, including the right to privacy, the right to freedom of expression and the right to due process; reminds the Commission that it is precluded by the 2003 Inter-Institutional Agreement from supporting self- and co-regulatory mechanisms where fundamental rights, such as the right to freedom of expression, are at stake;

25. Calls on the Commission to conduct an impact assessment, in due time before the Parliament consent procedure commences, of ACTA’s implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, concludes that the Commission must timely consult with Parliament about the results of this assessment and if necessary return to the negotiating table if the results of the impact assessment so require;

Access to medicines

26. Welcomes that in the civil enforcement section of ACTA patents may be excluded, as this could have hampered access to legal, affordable, and life-saving drugs; asserts that marked increases in damages and in other remedies for possible IP violations will deter generic competition and third parties involved in the production, sale or distribution of affordable generic medicines, particularly if these provisions are applied to in-transit goods; is concerned that applying civil enforcement provisions to patents in ACTA could go against the public interest by enforcing patents on living things, indigenous products and traditional medicines and may increase investment risk, market uncertainty and threaten technological innovation, particularly in sectors where infringement is difficult to determine; therefore urges the Commission the remove patents from the civil enforcement section;

27. Welcomes improvements in the ACTA draft text that provide more safeguards for privacy, public health and some of the protections under the TRIPS Agreement; directs the Commission to assess whether the safeguard provisions in ACTA are enforceable equally in relation to the enforcement provisions; asks the Commission to provide evidence that ACTA will not prevent Member States from introducing legislation that limits remedies for infringements such as to expand access to orphaned copyrighted works and to avail of flexibilities under the TRIPS Agreement to guarantee a full range of future policy options; asks the Commission to make an assessment of whether ACTA will in fact be a binding agreement and whether its Article 1.2 provides for a general flexibility for any element that might contradict ACTA in national law; asks the Commission to present the mechanisms enabling flexibility for Parties to adopt legitimate exceptions to the obligations of the Agreement, that are consistent with the objectives and principles of the TRIPS agreement and the Doha Declaration on TRIPS and public health of 2001;

28. Urges the Commission to include health safeguards in the Agreement text and not only in the preamble;

IPRs in the digital environment

29. Believes the ‘cooperation’ between right-holders and intermediaries in tackling IP infringements should be removed from ACTA, as it will lead to force the latter to setup monitoring systems and non-judicial settlements, which would in turn threaten end-users’ rights to privacy, data protection and judicial due process;

30. Worries that a very broad definition of acts of ‘commercial scale’ (art.2.14.1) coupled with an obligation to ensure criminal enforcement sanctions in case of IPR infringement in the digital environment (art.2.18.1), including for ‘aiding and abetting’ (art. 2.14.4), may encourage contracting parties of the agreement to adopt legislation which will in practice lead to criminalisation of private users and intermediaries;

31. Notes that the Agreement (Article 2.18.3) mandate a form of cooperation, as the result of an obligation (i.e. ‘shall’) on the Parties to ‘effectively address’ infringements;

32. Is deeply concerned about the disclosure of information to rights holders (Article 2.18.4) by not necessary judicial authorities (‘competent authorities’);

33. Urges the EU negotiators to re-include in the ACTA text provision 2.18.9 according to which: ‘The procedures described in the provisions 1-8 shall be implemented without prejudice to a Party’s law adopting or maintaining a regime providing for limitation of liability of internet service providers and prohibition of general obligation of content hosted and stored by internet service providers on request of users’;

34. Is concerned about the global ineffectiveness of the caveat inserted at footnote 14, which reads as follows: ‘without prejudice to the scope of copyright or related rights contained in a Party’s law...’, and about the Negotiator Note added to footnote 15, stating that there is no obligation for a Party to mandate interoperability, which seems to contradict the message stated in the recently adopted Digital Agenda;

ACTA Committee

35. Takes the view that the ACTA Committee should operate in an open, inclusive and transparent manner; instructs the Commission to present in due time before the Parliament will have to consider its opinion on the consent, recommendations for the governance of the ACTA Committee, particularly with respect to the European Parliament participation and the process of amending the Agreement;

36. Takes the opinion that the Commission should advocate to that procedures and terms of accession to ACTA are appropriately flexible and shall take into account the development levels, needs and objectives of acceding countries, in line with the Council Conclusions on Policy Coherence for Development;

37. Stresses any change in this agreement must undergo public scrutiny by all stakeholders and must receive parliamentary approval ; request the Commission to consult the Council and the European Parliament before accepting or proposing any amendment to the current text in the ACTA committee, in a process that assures transparency, parliamentary scrutiny and public participation;

Plurilateralism versus multilateralism

38. Regrets that the global impact of this agreement is by nature limited by the fact that countries which are the main source of counterfeiting are not part to the agreement;

39. Regrets that these negotiations and Agreement are undermining the multilateral fora (e.g. WIPO and WTO); Stresses that the ACTA committee should not become a new international institution;

40. Ask the European Commission to clarify the binding or voluntary nature of the text;

EPs Conditions to the Consent

41. Recalls that ACTA agreement requires the EP consent in order to come into force; calls on the Commission and the Council not to propose any provisional application of the agreement before the EP has given its consent; Reminds the Commission and the Council that the Parliament reserves its right to withhold consent to ACTA; makes any possible consent to the ACTA agreement conditional on the full cooperation on this resolution;

42. Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of states party to the ACTA negotiations.

(1)

http://www.wto.org/english/tratop_e/trips_e/t_agm4_e.htm

Last updated: 19 November 2010Legal notice