From Act-on-ACTA

Final version discussed in the group: http://www.erikjosefsson.eu/sites/default/files/Greens_EFA_draft_resolution_ACTA_Sept_II_Plenary_2010.pdf


Working Draft below (with urls)

DRAFT MOTION FOR A RESOLUTION

on ACTA for September II Plenary, 2010


The European Parliament,

– having regard to its resolution of 10 March 2010 on transparency and the state of play of ACTA negotiations [1]

– having regard to its Written Declaration 0012/2010 on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA) [2]

– having regard to the 21 April, 2010 consolidated public predecisional/deliberative draft text of the Anti-Counterfeiting Trade Agreement prepared for public release [3]

– having regard to the Commission's answers to written questions E-4286/2010 [4], P-4063/2010 [5] and E-2033/2010 [6]

– having regard to the Commission's public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC) [7]

– having regard to Council Regulation (EC) No 1383/2003 [8] and the review thereof [9]

– having regard to the opinions of the European Data Protection Supervisor on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement [10], and the letter from the Data Protection Working Party to the European Commission [11]

– having regard to World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [12]

– having regard to the WTO Doha Declaration on the TRIPS Agreement and Public Health [13], the World Health Organization (WHO) Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (WHA61.21) [14], and World Intellectual Property Organization (WIPO) Development Agenda [15]

– having regard to the Council Conclusions on the EU role in Global Health, particularly paragraphs 16(a) and 18(c) thereof [16]

– having regard to the European Ombudsman's decision on complaint 90/2009/(JD)OV relating to access to ACTA documents [17]

– having regard to the joint press declaration of all the ACTA negotiating parties on the 10th round of ACTA negotiations on 22 August, 2010 [18]

– having regard to the WTO news release on discussions on intellectual property enforcement trends at the June 8-9, 2010 TRIPS Council [19]

– having regard to WTO Dispute DS409, European Union and a Member State - Seizure of Generic Drugs in Transit [20]

- having regard to the Inter-Institutional Agreement on Better Law-Making between the European Parliament, the Council and the Commission (2003) establishes a strategy for better Law-Making throughout the EU legislative process [21]

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


A. whereas negotiating parties are working towards concluding the ACTA Agreement expeditiously and are "committed to resolving remaining substantive issues" at the September round to be held in Tokyo, Japan;

B. whereas the European 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";

C. whereas it is the Commission's view that "allowing the public at large to see what is and what is not in the [ACTA] text [...] is the best way to avoid misunderstandings, rumours and distorsions";

D. whereas the Commission is currently undertaking a consultation on the eCommerce Directive which covers "the interpretation of the provisions concerning the liability of intermediary information society service providers" and the European Parliament takes the view in Written Declaration 0012/2010 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";

E. whereas the TRIPS Agreement provides a specific exemption for goods in transit from border enforcement measures that could be eliminated through border provisions in ACTA (footnote 13) ; and ACTA proposals for the in-transit seizure of goods are analogous to the provisions of EU Council Regulation 1383/2003 currently subject to WTO dispute settlement and under review by the Commission;

F. whereas, according to the published draft, ACTA lacks numerous safeguards embodied in the TRIPS Agreement and other international instruments that would provide for a more balanced approach in the enforcement of intellectual property rights;

G. whereas, according to published documents, ACTA will limit key flexibilities contained in the TRIPS Agreement that are necessary to promote the public interest and innovation such as the award of injunctions as remedies and allowing for the balanced measurement of damages, and the use of national statutory exceptions;

H. whereas important trading partners such as India and China have asserted at the WTO TRIPS Council that ACTA may conflict with the TRIPS Agreement and other WTO agreements, undermine the balance of rights, obligations and flexibilities that were carefully negotiated in the various WTO agreements, distort trade or create trade barriers, and undermine flexibilities built into TRIPS such as for public health and trade in generic medicines;

I. whereas the European Parliament called on the Commission in its March 10 resolution to limit the scope of ACTA to the existing European IPR enforcement system against counterfeiting;

J. whereas ACTA negotiators have stressed the importance of effectively combating the proliferation of counterfeiting which undermines legitimate trade and the sustainable development of the world economy.


1. Recalls that the March 10 resolution called on the Commission "to engage proactively with ACTA negotiation partners to rule out any further negotiations which are confidential as a matter of course"; welcomes therefore the public release of the draft text of the Anti-Counterfeiting Trade Agreement in April; takes note that because subsequently texts of the Lucerne and Washington DC rounds were not made public its expectation for continued transparency was not met;

2. 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";

3. Calls on the Commission and the Council to secure a commitment with ACTA parties to immediately make public the current texts, texts emerging from further negotiations, and any draft texts that are likely to have an impact on the subsequent interpretation of the agreement; demands the suspension of negotiations until such understanding is reached and expects to be kept fully informed about the EU's position in this matter at all stages of the negotiations;

4. Asserts that the liability of online service providers, the processing and accessing personal data of internet users, and disconnecting citizens from the Internet or otherwise interfering with their ability to access online resources, are areas/topics subject to legislative review and must therefore be excluded from any explicit or implicit reference in the ongoing negotiations so as not to limit the Parliament's legislative prerogatives in these sensitive matters, particularly those relating to enforcement procedures and corporative efforts to address intellectual property rights infringement in the digital environment; reminds the Commission that it is precluded by the 2003 Inter-Institutional Agreement from supporting self- and co-regulatory mechanisms where fundamental, such as the right to freedom of expression, are at stake

5. Instructs the Commission not to exceed standards of the TRIPS Agreement in relation to the special treatment of in-transit goods and to support the exclusion of in-transit goods from the scope of border enforcement provisions in ACTA; reminds the Commission that relevant EU legislation in Council Regulation 1383/2003 is under review, that the dispute over legitimate drug seizures at the WTO is pending resolution, and that ACTA border measures could still apply to patents which heightens the threat of further seizures contrary to assurances from the Commission;

6. Notes the absence or lack of consensus to include numerous safeguards contained in the TRIPS Agreement in ACTA, including but not limited to, protections against abuse (e.g. Articles 41.1, 48.1, 48.2, 50.3, 53.1, 56), application of flexibilities (e.g. Articles 6, 30, 31, 37, 44.2), proportionality of enforcement measures (e.g. Articles 46, 47), provisions providing for balance (e.g. Articles 7, 8, 13, 14, 17, 24, 26.2, 27, 30, 31, 37, 39.3, 40, 41, 42, 44 and 73); instructs the Commission to extend general support for safeguards throughout ACTA, in particular the inclusion of the language of TRIPS Articles 7 and 8, and to advance provisions protecting privacy and the use of information; directs the Commission to include non derogatory references to the WTO Doha Declaration on TRIPS and Public Health, the WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property, and the WIPO Development Agenda;

7. Directs the Commission not to pursue any position in the negotiations that could foreclose the creation of liability rule approaches to limit remedies for infringements as provided for under the TRIPS Agreement or that constrains the use of statutory limitations under domestic law, recognizing that many Member States make use of statutory exceptions in their national laws and that flexibilities are essential to guarantee a full range of future policy options (e.g., para 18 (c) Council conclusions on the EU role in Global Health)

8. Is mindful that the aim of the negotiating parties is to extend ACTA to developing and emerging country trade partners underlines the importance of including adequate safeguards and flexibilities in ACTA to accommodate different countries' varying levels of development and diverse legal regimes; moreover, the ACTA Committee's mandate should direct that it shall operate in an open, inclusive and transparent manner, especially in light of its authority to consider amendments to ACTA and oversee its implementation.

9. Repeats its call to the Commission to limit the scope of ACTA to the European IPR enforcement system against counterfeiting of goods and within that scope urges that ACTA only be applied to wilful, commercial scale trademark counterfeiting; urges the Commission to include in its negotiations geographical indications as a part of the EU trademark Aquis;

10. Reminds the Commission and the Council that the Parliament reserves its right to withhold consent to ACTA under (insert Lisbon consent reference); makes any possible consent to the ACTA agreement conditional on the full respect of this resolution

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



References:

[1] European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations, Wednesday, 10 March 2010 - Strasbourg, P7_TA-PROV(2010)0058 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0058+0+DOC+XML+V0//EN&language=EN

[2] WRITTEN DECLARATION 0012/2010 on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA) and potentially objectionable content http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+WDECL+P7-DCL-2010-0012+0+DOC+PDF+V0//EN&language=EN

[3] Consolidated public predecisional/deliberative draft text of the Anti-Counterfeiting Trade Agreement prepared for public release, 21 April 2010 http://trade.ec.europa.eu/doclib/html/146029.htm

[4] Question for written answer to the Commission (Rule 117) "Does ACTA undermine delinkage of medicine prices and R & D costs?" http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2010-4286+0+DOC+XML+V0//EN&language=EN

[5] Question for written answer to the Commission (Rule 117) "ACTA and ongoing WTO dispute settlement proceedings" http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+P-2010-4063+0+DOC+XML+V0//EN&language=EN

[6] Question for written answer to the Commission (Rule 117) "Statement by Commission Vice-President Neelie Kroes concerning the negotiations on the ACTA agreement" http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2010-2033&language=EN

[7] Public consultation on the future of electronic commerce in the internal market and the implementation of the Directive on electronic commerce (2000/31/EC) http://ec.europa.eu/internal_market/consultations/2010/e-commerce_en.htm

[8] Council Regulation (EC) No 1383/2003 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:196:0007:0014:EN:PDF

[9] "Review of customs legislation on enforcement of intellectual property rights" http://ec.europa.eu/taxation_customs/common/consultations/customs/ipr_2010_03_en.htm

[10] Opinions of the European Data Protection Supervisor on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (2010/C 147/01), Official Journal of the European Union, 5.6.2010.

[11] Letter to the European Commission from the Article 29 Data Protection Working Party, Brussels, 15.07.2010, D(2010) 11185. http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/others/2010_07_15_letter_wp_commissioner_de_gucht_acta_en.pdf

[12] World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/docs_e/legal_e/27-trips.pdf]

[13] 2001 Doha Declaration on the TRIPS Agreement and Public Health http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm

[14] Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (WHA61.21) http://apps.who.int/gb/ebwha/pdf_files/A61/A61_R21-en.pdf

[15] World Intellectual Property Organization (WIPO) Development Agenda http://www.wipo.int/ip-development/en/agenda/recommendations.html

[16] Council of the European Union 3011th Foreign Affairs Council meeting, conclusions on the EU role in Global Health, 10 May 2010, Brussels http://onetec.be/global_health/doc/Council%20Conclusions%20Global%20Health%20May%202010.pdf

[17] European Ombudsman's decision on complaint 90/2009/(JD)OV relating to denied access to ACTA documents http://people.ffii.org/~ante/acta/ombudsman-2010-7-23.pdf<http://people.ffii.org/%7Eante/acta/ombudsman-2010-7-23.pdf>

[18] Joint Press Declaration from all the ACTA negotiating parties on 10th Round of ACTA Negotiations, Washington/Brussels, 22nd August 2010 http://trade.ec.europa.eu/doclib/docs/2010/august/tradoc_146408.pdf]

[19] WTO news release on the June 8-9 2010 TRIPS Council http://www.wto.org/english/news_e/news10_e/trip_08jun10_e.htm

[20] DISPUTE SETTLEMENT: DISPUTE DS409, European Union and a Member State — Seizure of Generic Drugs in Transit http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds409_e.htm and http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds409_e.htm

[21] INTERINSTITUTIONAL AGREEMENT on better law-making (2003/C 321/01)

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