Document stages in plenary
Document selected : B7-0621/2010

Texts tabled :

B7-0621/2010

Debates :

Votes :

PV 24/11/2010 - 8.6

Texts adopted :


MOTION FOR A RESOLUTION
PDF 170kWORD 94k
See also joint motion for a resolution RC-B7-0617/2010
17.11.2010
PE450.455v01-00
 
B7-0621/2010

to wind up the debate on the statement by the Commission

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


on ACTA


Helmut Scholz, Eva-Britt Svensson, Marie-Christine Vergiat, Miloslav Ransdorf, Cornelia Ernst on behalf of the GUE/NGL Group

European Parliament resolution on ACTA  
B7‑0621/2010

The European Parliament,

–       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 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 transparent process for the Anti-counterfeiting trade agreement (ACTA),

–       having regards to the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001,  

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

–       having regard to Rule 110(2) of its Rules of Procedure,

A.     whereas ACTA agreement was first presented as an agreement against counterfeiting, but has then moved to the defence of patents, trademarks and copyright, with the European commission negotiating with no mandate thereon,

B.     whereas ACTA has raised serious concerns in the European Parliament and among citizens over issues such as the Respect for fundamental rights, privacy and data protection, the respect for the important role of free Internet and the safeguard of the role of service providers and the safeguard of access to medicines,

C.     whereas the legal basis of ACTA has not yet been established, despite the clear request of the EP,

D.     whereas the Commission has continued to negotiate on the ACTA agreement without an adequate mandate giving a legal base and despite the resolution the fact that the main issues raised by the European Parliament in its resolution of March 10, 2010 have not been addressed,

E.     whereas the 11th and final round of the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) was concluded in Tokyo, Japan on October 2,.2010 and the Commission is announcing the possible conclusion of negotiations,

F.     whereas in addition to the EU only 10 countries owning most of the patents, trademark, intellectual property rights and geographical indications of the world, and only two developing countries (Morocco and Mexico) participated in the negotiations,

G.     whereas the clear pretension of the negotiating parties is to impose an already closed and settled ACTA agreement to emerging and developing and countries, probably through bilateral and multilateral trade agreements without giving them the chance to bring any input in the negotiated text,

H.     whereas not all negotiation texts were made public as requested by the European Parliament in its resolution of March 10, 2010, until October 6 2010 when the largely finalised text was made public and thereafter, the Commission briefed Parliament,

I.      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",

J.      whereas the Commission as guardian of the Treaties is obliged to uphold, this implies that it can not change, the acquis communautaire, when negotiating international agreements affecting legislation in the EU,

K.     whereas as the Commission repeatedly said in plenary debates that the Anti Counterfeiting Trade Agreement only addresses enforcement measures and does not include provisions modifying substantive IPR law within the EU,

L .    whereas the Directive 2001/29/EC provides for a harmonised legal framework on copyright and related rights and a rigorous, effective system for their protection; whereas Article 5 of the Directive presents an exhaustive enumeration of exceptions and limitations, thereby limiting Member States from providing new exceptions and limitations; whereas ACTA seeks to further extend the level of protection for right holders by catering for more extensive copyright enforcement competencies, but does not address the possibility of expanding existing exceptions and limitations and may constrain discretion of national courts to flexibly interpret existing exceptions; whereas technological advances have multiplied and diversified the vectors for creation, production and exploitation of creative works and a fair balance of interests between right holders and users requires new approaches to liberalising access to these works through digital technologies; whereas the Commission is preparing a legislative proposal on orphan works to facilitate the digitisation and dissemination of culture works in Europe,

M.    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 and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,

N.     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 which permit in some cases reverse engineering,

Patents

O.     whereas the Trade Commissioner invited the opinion of the Parliament during the 20 October 2010 plenary 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; whereas EU Council Regulation 1383/2003, the provisions of which are being discussed in a WTO dispute case, provides border enforcement measures for in-transit goods; whereas some actors such as businesses in the pharmaceutical sector, manufacturers of generic medicines and global health advocates alert against the inclusion of patents in ACTA and warn of potential detrimental effects on technological innovation, access to medicine and generic competition,

P.     whereas there is no EU legislation on patents,

Q.     whereas the trade of legitimated quality generic medicines must not be undermined by the fight against willful trademark infringement on commercial scale; whereas the application of civil enforcement measures in ACTA to patents could hamper access to legal, affordable medicines; asserts that marked increases in damages and in other remedies for possible IP violations will deter manufacturers 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, and may increase investment risk, market uncertainty and threaten technological innovation, particularly in sectors where infringement is difficult to determine, or in enforcing patents on living things, indigenous products and traditional medicines; is therefore of the opinion that the Commission support the explicit and absolute exclusion of patents from the scope of the Civil Enforcement section of the agreement,

Access to medicines

R.     whereas some important trading partners not currently parties to ACTA (e.g. Brazil, India, China) have asserted at the WTO TRIPS Council that ACTA may conflict with the TRIPS Agreement and other WTO agreements, pose a risk to WTO law and process by operating outside the WTO legal framework, undermine the balance of rights, obligations and flexibilities that were carefully negotiated in various WTO agreements, distort trade or create trade barriers, and undermine flexibilities built into TRIPS and the Doha declaration on TRIPS and public health of 2001, such as for public health and trade in generic medicines,

Fundamental rights

S.     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",

T.     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,

U.     whereas the Commission is bound by the 2010 Inter-Institutional Agreement and therefore shall not support self- and co-regulatory mechanisms where fundamental rights, such as the right to freedom of expression, are at stake,

V.     whereas the Commission issued a communication on impact assessment on 19 October 2010,

Commercial scale

W.    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",

X.     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",

Criminal enforcement and sanctions

Y.     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 on behalf of Member States,

 

IPRs in the digital environment

Z.     whereas the e-commerce directive and written declaration 0012/2010 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",

AA.  whereas Article 1.2 of the agreement states that “Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.",

BB.   whereas the infringement of IPRs in the digital environment is dealt by the national judicial authorities,

ACTA Committee

CC.  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.      Strongly opposes the fact that the EC continues to negotiate ACTA agreement and announces its intention to initial it, without legal base, without a mandate on which the Parliament has been able to give its opinion, and without addressing the other concerns raised by the European Parliament in its resolution of March 10, 2010;

2.      Reiterates that combating counterfeiting is a necessity but this legitimate purpose should not be mixed with other offensive trade purposes (GI's, IPR, ...), and doesn't need a new trade instrument but enforcement measures and coordination;

3.      Considers unacceptable that such negotiations have been conducted by few rich countries owning most of IPR, GI's and patents, and only two developing countries, excluding and weakening existing multilateral institutions such as WIPO;

4.      Rejects the method consisting in negotiating a trade agreement with few countries and inviting the rest of countries to join afterwards an agreement they have not negotiated, or even worst, imposing them to join ACTA in the future, establishing linkages with bilateral or multilateral agreements;

5.      Considers that ACTA, even in the version of the last consolidated text made public continues to be a serious threat against civil liberties and fundamental rights, for development and for access to generic medicines, and that the Commission is far from providing to the EP the necessary answers to the concerns raised;

6.      Ccalls on the Commission and Council to clarify the legal basis before continuing negotiating any agreement. 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.      Takes note of the Ombudsman's decision and is of the opinion that citizens have a clear interest in being informed and in monitoring if the public interest is being served, particularly if ACTA necessitates legislation; recognises the public criticism of the secrecy of the negotiations as a clear signal of the political unsustainability of the negotiation process adopted; reminds the Commission of its treaty obligation under TFEU art 15 "to promote good governance and ensure the participation of civil society" and to conduct its "work as openly as possible"; instructs the Commission to provide for an opportunity to receive and duly consider input from EU citizens on the agreement text before initialling the agreement;

8.      Takes note of the Commission's repeated statements that the enforcement of ACTA provisions – especially those on copyright enforcement procedures in the digital environment – are fully in line with the acquis communautaire and that neither personal searches nor the so-called 'three strikes' procedure will be introduced by this agreement. Any ACTA signatory and in particular the EU may not be mandated to introduce three strikes or similar regimes by the agreement;

9.      Urges the Commission to commit itself and to provide evidence in writing to the European Parliament in due time before initialling that ACTA does not constrain the harmonisation of exceptions and limitations for copyright and related rights in the EU; considers that ACTA, -should it be concluded- would constrain the possibility of future expansion of the exceptions and limitations beyond those listed in Directive 2001/29/EC; foreclose future policy options and judicial actions to expand access to creative works given technological advances through the use of exceptions; limit legislative options being on orphan works or prevent Member States from introducing legislation to expand access to orphaned copyrighted works, that limit the remedies of infringing such works;

10.    Calls on the Commission to confirm that ACTA will not change now and in the future the EU acquis' on fundamental rights and data protection, and on the ongoing EU efforts to harmonise IPR enforcement measures and E-Commerce;

11.    Asks the Commission to explicitly confirm, in due time before the Parliament consent procedure commences, that ACTA's provisions leave unaffected the provisions in the acquis communautaire such as those contained in the Software Directive 91/250/EEC and the Information Society Directive 2001/29/EC and Member State implementations thereof that permit in some cases reverse engineering of computer programs and circumvention of TPMs in order to enable interoperability, thereby promoting competition and innovation;

Patents

12.    Rejects the inclusion of patents in the civil enforcement section of ACTA, in particular with regards to the production, sale and distribution of affordable generic medicines; Calls therefore on the Commission to support the explicit and absolute exclusion of patents form the scope of the Civil Enforcement Section of the Agreement;

Access to medicines

13.    Takes note that the Deliberative Draft text of October 2, 2010 in its preamble states ACTA intends "to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in the respective legal systems and practices" of the ACTA Parties; and recognises that "the principles set out in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO Ministerial Conference, held in Doha, Qatar" are building blocks on which ACTA Deliberative text of 2 October 2010 stands and therefore considers that any enforcement of ACTA should comply with these principles;

14.    Takes note of some 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, including, but not limited to, cases such as to expand access to orphaned copyrighted works or 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;

Fundamental rights

15.    Emphasises that privacy and data protection should be core values of the European Union, as they are 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;

16.    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;

17.    Recalls on the Commission to conduct an impact assessment, in due time before the initialling of any the Agreement, 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;

18.    Insists that the Commission is speedily acting in accordance with its communication of 19 October 2010 on an impact assessment on Fundamental Rights;

Geographical indications

19.    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;

Commercial scale

20.    Notes 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);

21.    Taking into account that the Presidency of the Council has negotiated the Criminal enforcement section on ACTA on behalf of Member States, requests the Commission and Council to present to present to Parliament a precise interpretation of "commercial scale" as mentioned in Article 2.14.1 of the Agreement; requests the Commission and Council to reaffirm that Article 2.14.1 will not require any changes to the acquis communautaire and in particular regarding the European Parliament 's 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). Request that a "de minimis exception" is introduced in Article 2.14.1;

22.    Believes it not appropriate to extend criminal responsibility in a footnote as it is done in footnote 9 of the Consolidated text;

23.    Considers that no state should be obliged to provide criminal procedures and penalties for the unauthorised copying of cinematographic works form a performance in a motion picture exhibition facility generally open to public;

24.    Considers that parties should not be obliged to criminalise camcording;

Criminal enforcement and sanctions

25.    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;

26.    Requests the EDPS to submit an Opinion on the most recent ACTA Text;

 

IPRs in the digital environment

27.    Strongly rejects the fact that the Commission seems to accept Article 2.18.3 that mandates (i.e. "shall endeavour") cooperation of the Parties with the business community to "effectively address" infringements;

28.    Is deeply concerned about the disclosure of information to right holders (article 2.18.4) by not necessarily judicial authorities ("competent authorities"); requests the Commission to explain the compatibility of this provision with Article 15 of the e-piracy Directive, especially in case of civil enforcement;

ACTA Committee

29.    Considers that the role of the ACTA Committee foreseen by the draft is unclear, and that it is unclear that it will operate in an open, inclusive and transparent manner; instructs the Commission to clarify, before initialling any agreement, the role of ACTA Committee and its governance particularly with respect to the European Parliament participation and the process of amending the Agreement;

30.    Stresses any change in such an 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;

EP's conditions to the consent

31.    Recalls that ACTA agreement requires the EP consent and possibly the ratification by Member States; 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;

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

 

Last updated: 18 November 2010Legal notice