LibertyVoice

A joint resolution on Transparency and State of Play of ACTA negotiations from virtually all party groups in the European Parliament was tabled earlier today.  It will debated tonight and faces a vote on Wednesday.  If approved, the resolution marks a major development in the fight over ACTA transparency.  It calls for public access to negotiation texts and rules out further confidential negotiations.  Moreover, the EP wants a ban on imposing a three-strikes model, assurances that ACTA will not result in personal searchers at the border, and an ACTA impact assessment on fundamental rights and data protection.  The full resolution:


The European Parliament,
–     having regard to Articles 207 and 218 TFEU
-    having regard to its Resolution of 9 February 2010 on a "Renewed Framework Agreement between the Parliament and the Commission for the next legislative term" (B7-0091/2010)
–     having regard to its Resolution of 11 March 2009 on "Public access to European Parliament, Council and Commission documents (recast)" to be considered as Parliaments position in First Reading  (COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
–     having regard to its Resolution of 18 December 2008 on "the impact of counterfeiting on international trade" (2008/2133(INI))
-    having regard to the Opinion of the European Data Protection Supervisor of 22 February 2010 on "the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA)"
-    having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,
-    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 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 Rule 110 of its Rules of Procedure,

A.    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 and piracy (Anti-Counterfeiting Trade Agreement - ACTA), and jointly agreed on a confidentiality clause,

B.    whereas in its report of 11 March 2009 Parliament called on the Commission to "immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available",

C.    whereas the Commission on 27 January 2010 assured its commitment to a reinforced association with Parliament in the terms of its Resolution of 9 February 2010 on a renewed Framework Agreement with the Commission, demanding "immediate and full information at every stage of negotiations on international agreements, in particular on trade matters and other negotiations involving the consent procedure, to give full effect to Article 218 TFEU",

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

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

F.    whereas, according to documents leaked, the ACTA negotiations touch, among others, on pending EU legislation regarding the enforcement of IPRs (COD/2005/0127, Criminal measures aimed at assuring the enforcement of intellectual property rights, (IPRED-II)) and the so-called "Telecom Package", and on existing EU legislation regarding E-Commerce and data protection,

G.    whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of the normal EU decision-making processes,

H.    whereas it is crucial to ensure that the development of IPR enforcement measures is accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information, or unduly burden legitimate trade,

I.     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,

J.    whereas the Treaty of Lisbon is in force since 1 December 2009,

K.    whereas as a result of the entry into force of the Lisbon Treaty, the Parliament will have to give its consent to the ACTA Treaty text, prior to its entry into force in the EU,

L.    whereas the Commission committed itself to provide immediate and full information to the European Parliament at every stage of negotiations on international agreements,

1.    Reminds that the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations;

2.    Expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations which contradicts the letter and the spirit of the TFEU; is deeply concerned that no legal base has been established before the start of the ACTA negotiations and that no parliamentary approval has been asked for the mandate;

3.    Calls on the Commission and Council to grant public and parliamentary access to ACTA negotiation texts and summaries in accordance with the Treaty and the Regulation 1049/2001 on Public Access to Documents;

4.    Calls on the Commission and Council to pro-actively engage with ACTA partners to rule out any further negotiations of an a piori confidential nature and to timely and entirely inform Parliament about its initiatives in this regard; expects the Commission to make proposals already prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting, and to refer to Parliament the outcome of this round immediately after its conclusion;

5.    Stresses that, unless the Parliament is immediately and fully informed at all stages of the negotiations, Parliament reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives;

6.    Calls on the Commission to conduct an impact assessment of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, prior to any EU agreement to a consolidated ACTA treaty text, and to timely consult with Parliament about the results of this assessment;

7.    Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union;

8.    Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;

9.    Urges the Commission to ensure that the enforcement of ACTA provisions - especially its provisions on copyright enforcement procedures in the digital environment - are fully in line with the acquis communitaire; demands that no personal search is undertaken at the EU borders and requests full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices, such as laptops, cell phones and MP3 players, by border and customs authorities;

10.    Considers that in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called "three strikes" procedures, in full respect of the decision of Parliament on article 1.1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of  "three strikes"

11.    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;

12.    Instructs its President to forward this resolution to the Commission, the Council and the Governments and Parliaments of ACTA negotiation participants.

Europe has become the centre of a storm over the Anti-Counterfeiting Trade Agreement.  Late last week, the Government of Sweden announced that the European Union was now uniformally seeking ACTA transparency.  The announcement came just days after the Dutch leak that identified the specific countries opposed to a transparent approach.  The revelations appear to have had a significant impact as all European Union countries are now said to support release of the ACTA text.

This week the issue hits the European Parliament that includes an ACTA debate on Tuesday, followed by a landmark resolution that will be on the table on Wednesday.   At the moment, there are two competing resolutions.  One resolution promoted by an alliance of the Liberal and Green Party, includes the following:

1.  Expresses its utmost concern over the lack of a transparent process in the conduct of the ACTA negotiations, which contradicts the letter and the spirit of the TFEU;

2.  Is of the opinion that legitimate arguments for non-disclosure do not exist with regard to international negotiations on the enforcement of intellectual property rights or similar issues, which are legislative in character and have an impact on fundamental rights; maintains that the negotiating position of the EU or other negotiating parties is not circumscribed if information about the negotiations is available to the European Parliament and the general public;

3.  Regrets the calculated choice of the parties not to negotiate through well-established international bodies, such as the WIPO and WTO, which have established frameworks of public information and consultations;

4.  Calls on the Commission to grant Parliament access to all primary texts relating to ACTA, in particular the ACTA negotiation mandate by the Council, the minutes of ACTA negotiation meetings, the draft chapters of ACTA, and the comments of ACTA participants on the draft chapters;

5.  Acknowledges that, in addition to the clear legal obligation to inform Parliament, the ACTA documents should also be available to the general public in the EU and in the other countries participating in the negotiations; understands the wide public criticism of the secrecy of the ACTA negotiations as a clear signal of the political unsustainability of the negotiation procedure chosen;

6.  Calls on the Commission to engage proactively with ACTA negotiation partners to cancel any previous formal or informal internal agreements on the confidential nature of the conduct of the negotiations and to inform Parliament about its initiatives in this regard in due course; expects the Commission to make proposals prior to the next negotiation round in New Zealand in April 2010 and to demand that the issue of transparency is put on the agenda of that meeting;

7.  Reminds the Commission that if it does not provide Parliament with immediate and full information about the negotiations in accordance with Art. 218 TFEU before the next round of negotiations in April, Parliament will have no choice but to bring an action in accordance with Art. 263 TFEU for infringement of the Treaties to the Court of Justice of the European Union;

8.  Calls on the Commission to conduct an impact assessment of the implementation of ACTA with regard to fundamental rights and data protection, ongoing EU efforts to harmonise IPR enforcement measures, e-commerce and the possible impact of ACTA on fundamental rights and the rule of law in third – especially developing – countries, prior to any EU agreement on a consolidated ACTA treaty text, and to consult with Parliament in a timely manner about the results of this assessment;

9.  Welcomes affirmations by the Commission that any ACTA agreement will be limited to the enforcement of existing IPRs, with no prejudice for the development of substantive IP law in the European Union; makes any possible assent to the ACTA agreement conditional to the full respect of this affirmation;

10.  Urges the Commission to ensure that the enforcement of ACTA provisions - especially those on copyright enforcement procedures in the digital environment - are fully in line with the letter and the spirit of the acquis communautaire and do not imply ‘self-regulatory’ measures being imposed by private companies outside the scope of democratic decision-making processes; considers that Internet service providers should not bear liability for the data they transmit or host through their services to an extent that would imply prior surveillance or filtering of such data;

11.  Emphasises 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;

12.  Points out that any measure aimed at strengthening powers for cross-border inspection and seizures of goods should not harm global access to legal, affordable and safe medicines;

13.  Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of countries participating in ACTA negotiations.

The second resolution, supported by Conservative Members of the European Parliament, includes:

1.  Is aware that the ACTA negotiations, owing to their particular nature, require a high level of confidentiality in order not to undermine the legitimate interests of the stakeholders and the participating States; considers, however, that a more transparent process should be ensured in order to provide appropriate information, as repeatedly requested by the European Parliament;

2.  Welcomes the fact that the Commission has been briefing members of Parliament's Committee on International Trade (INTA), despite the confidential character of the multilateral negotiations, using the format of regular exchanges of views with the Director-General of DG Trade at open meetings of INTA coordinators;

3.  Calls on the Commission to grant Parliament access to documentation of ACTA negotiating texts in order to permit it to be up to date with the state of play of the negotiations; acknowledges that certain information might require confidentiality and should be provided in an appropriate form;

4.  Calls on the Commission also to actively engage with the other ACTA negotiating partners prior to the next negotiating round in New Zealand in April 2010, in order formally to place the issue of transparency on the agenda for that meeting, and to report to Parliament's specialised committee on the outcome of that round immediately after its conclusion;

5.  Calls on the Commission to continue the negotiations on ACTA in order to improve the effectiveness of the IPR enforcement system against counterfeiting;

6.  Calls on the Commission to conduct an assessment of the impact of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures and on E-Commerce, with a view to an EU agreement on a consolidated ACTA text, and to consult with Parliament about the results of this assessment in due course;

7.  Welcomes the Commission's statements to the effect that any ACTA agreement will be limited to the enforcement of existing IPRs, without prejudice to the development of substantive IP law in the European Union;

8.  Urges the Commission to ensure 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 no personal searches are undertaken at EU borders;

9.  Considers that, in order to comply with fundamental rights, such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed agreement should not impose the so-called 'three strikes' procedure;

10.  Emphasises that privacy and data protection are core values of the European Union, as recognised in Article 8 of the European Convention on Human Rights (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;

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

Over the next couple of days there will efforts to merge the two documents.  If adopted, the resulting document will be the strongest statement from an elected body on the need for dramatic change to the current ACTA process. 

On top of these resolutions, there is also a written declaration supported by four MEPs (Françoise Castex, Zuzana Roithová, Alexander Alvaro, Stavros Lambrinidis).  La Quadrature du Net has information on how to support the declaration.

Richard Poynder, who covers open access issues in great detail, has posted a detailed interview with me on ACTA and its implications for open access and IP policy.

German Justice Minister Leutheusser-Schnarrenberger tells Spiegel Online that Germany would like to see the full draft ACTA texts released now and that the country will not accept inclusion of a three strikes system nor adopt such a system domestically.

The USTR has posted responses to a series of ACTA questions posed by U.S. Senator Ron Wyden.

The Dutch Minister of Economic Affairs Van der Hoeven has issued a release calling for ACTA transparency.  Van der Hoeven adds that a three-strikes system is unacceptable.

Yesterday's ACTA leak that provides full detail on each country's negotiation position attracted immediate media attention, with the New Zealand press picking up on the story (and that country's tough position), while the Australian press lamented their country's relative silence at the negotiation table.  And what of Canada?  The Canadian positions on the Internet chapter culled from the EU leaked document are:

• expresses concern with the disparity between the section title and the scope of content of the section
• seeks clarification of the scope of "related rights" in provision dealing with a general enforcement obligation. Argues that it should be consistent with the Criminal and Civil Enforcement chapters
• concerns with a footnote on third party liability that seeks to define its scope.  Canada notes that the footnote effectively changes the meaning of the main text.
• seeks more information on the scope of "modification" to the content in a provision on online service providers
• notes that the relationship between third party liability and ISP limitation on liability is unclear
• seeks clarification of the relationship of anti-circumvention exceptions to access control measures

That's it.  Compare the Canadian focus on clarifications of legal language and hints at opposition with the far-tougher, more explicit New Zealand positions:

• on the preamble: "the words 'in order to facilitate the continued development of an industry engaging in providing information services online' provide an interpretative gloss on Article 2.17.3 which appears to go beyond the general aim of ACTA to provide a framework for the enforcement of intellectual property rights
• on safe harbours: "we understand [Paragraph (a)(iii) covers information location tools such as search engines.  It is not clear how the provision or use of information location tools breaches copyright, or why third party liability should arise for the provision of such tools.  We would welcome further explanation on the need to provide such a safe harbour."
• on establishing a policy that could lead to three strikes: "New Zealand does not support the inclusion of this condition.  New Zealand can, however, support the inclusion of a provision aimed at preventing a party to ACTA conditioning safe harbours on an online service provider "monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring."
• on anti-circumvention rules: "The paragraphs refer to 'adequate legal protection' as well as remedies, which is inconsistent [with] the objective of ACTA to establish standards for the enforcement of intellectual property rights and the ACTA discussion paper. In particular, we note that the discussion paper only refers to parties providing 'remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices."  New Zealand does not support protection being mandated against circumvention of TPMs where the underlyig work is not protected by copyright.  In particular, we do not support protection against circumvention of access control TPMs because access control is not an exclusive right given to copyright owners."
• on rights management information: New Zealand does not support the protection of RMIs extending to information that identifies a performance, the performer of the performance, the owner of any right in the performance, or the producer of a phonogram."

Why is the Canadian delegation content to say virtually nothing and leave it to New Zealand to take the strongest position on these ACTA issues?  Why does Canada not join with New Zealand to present a stronger front against the extension of ACTA far beyond copyright enforcement?

Last week's revelation that Denmark is one of the countries blocking ACTA transparency has stirred up media attention in that country.  The issue was covered by the national broadcaster and in the press.

The New Zealand government has launched a new ACTA consultation, seeking feedback on the Internet enforcement chapter.  The deadline for submissions is March 31, 2010.

On the heels of the leak of various country positions on ACTA transparency, today an even bigger leak has hit the Internet.  A new European Union document prepared several weeks ago canvasses the Internet and Civil Enforcement chapters, disclosing in complete detail the proposals from the U.S., the counter-proposals from the EU, Japan, and other ACTA participants.  The 44-page document also highlights specific concerns of individual countries on a wide range of issues including ISP liability, anti-circumvention rules, and the scope of the treaty.  This is probably the most significant leak to-date since it goes even beyond the transparency debate by including specific country positions and proposals.

The document highlights significant disagreement on a range of issues.  For example, on the issue of anti-circumvention legislation and access controls, the U.S. wants it included per the DCMA, but many other countries, including the EU, Japan, and New Zealand do not, noting that the WIPO Internet treaties do not require it.

A brief summary of the key findings are posted below, but much more study is needed.

Internet Enforcement Chapter

• Canada has expressed concern with the title of the chapter ("Special Measures Related to Technological Enforcement Means and the Internet") and the substance of the chapter
• On the ISP safe harbour chapter, the leak identifies three proposals (consistent with an earlier NZ comment).  In addition to the U.S. proposal that was leaked earlier, there is a Japanese proposal and one from the EU.  Moreover, many countries have raised specific issues about the U.S. language.  For example, New Zealand notes that the safe harbour appears to cover Information Location Tool providers (ie. search engines), but that it wonders why there is a concern of liability to begin with.
• Japan's alternative proposal calls for ISP liability based on knowledge of infringement.  It states that there may be liability if it is technically possible to prevent the infringement and the provider "knows or there is reasonable ground to know" that infringement is occurring.  There are additional provisions on the inclusion of a notice system and industry cooperation.
• With respect to the requirement of an ISP policy that could include three strikes as a pre-requisite for qualifying for the safe harbour, New Zealand is opposed to the condition altogether.  Meanwhile, Japan notes that its law does not contain a policy requirement and it would have to consider whether it can agree to that requirement.
• On the implementation of notice-and-takedown, Canada has noted that the relationship between third party liability and ISP limitation of liability is unclear.
• On the anti-circumvention rules, which involves a U.S. attempt to implement a global DMCA, the EU would like to exclude access controls from the ambit of the provision.  They are not alone - New Zealand opposes their inclusion and Japan also takes the position that access controls are not required by the WIPO Internet treaties and is apparently concerned about the implications for its domestic law.  There is no reference to a Canadian position, despite the fact that this goes beyond current Canadian law.

Civil Enforcement Chapter

• the U.S., Japan, and the European Union want the civil enforcement powers to extend to any intellectual property right.  Canada, Singapore, and New Zealand seek a more limited treaty that covers only copyright and trademarks.
• the EU is seeking injunctive relief powers against intermediaries whose services are used by a third party to infringe an IP right.  The EU is alone in focusing on intermediary injunctions.
• on statutory damages, the EU seeks to limit damages to actual damages, while the U.S. is proposing statutory damages.   There is also dispute on the scope of the IP rights (all vs. just copyright and trademark).  Canada and NZ also want to limit or exclude damages in certain special cass.
• on the disclosure of information related to investigations, the U.S. is pushing for very broad language, while the E.U. wants to limit with specific kinds of information (and Canada has proposed further limiting language).