ACTA Europe Pressure Intensifies: Transparency Demands, EP Resolution
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By Michael Geist 3/8/10
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:
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Michael Geist |
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- 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:
- 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;
- 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;
- 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;
- 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;
- Calls on the Commission to continue the negotiations on ACTA in order to
improve the effectiveness of the IPR enforcement system against counterfeiting;
- 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;
- 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;
- rges 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;
- 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;
- 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;
- 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.
Dr. Michael Geist is
a law professor at the University of Ottawa where he holds the Canada Research
Chair of Internet and E-commerce Law. as written numerous academic articles
and government reports on the Internet and law and is a columnist on technology
law issues
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