October 21, 2010

De Gucht 1st Plenary Intervention on ACTA (20 Oct 2010)

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Karel De Gucht, Member of the European Commission (20 Oct 2010).

Mr President, honourable Members, you asked me to come to the plenary to explain where we are in the negotiations on ACTA – the international Anti‑Counterfeiting Trade Agreement. I share your view that this is an important dossier, and I am here for the third time in less than a year to discuss it with you.

Where are we? Well, in two words, we are almost there. Indeed, on 2 October 2010, negotiators from the EU and 10 other countries concluded the last round of negotiations. They have resolved nearly all issues with only a few still open. I will come back to that later.

A consolidated and largely stabilised text of the proposed agreement was made public two weeks ago. I hope that this has allowed you to find out that the Commission has scrupulously respected the principles that I laid out in my previous interventions in this House.

It is essential to remember that ACTA is an agreement concerning the enforcement of intellectual property rights. This means that it does not oblige any of its signatories to create new, substantive rights or to change existing ones. It only commits its signatories to ensuring that the rights holders can fully assert their rights if, when and where they exist.

ACTA is about establishing a new tool that will ensure that existing intellectual property rights are effectively protected. This is essential if we want to maintain a leading role in the ‘knowledge economy’. Contrary to what some seem to be claiming, ACTA is not about creating some sort of ‘Big Brother’.

I know that you had concerns with the fact that the negotiations were conducted behind closed doors and that the negotiating texts were not made public. At the insistence of the Commission, successive versions of the text have been published and our negotiators came here after each round to answer all your questions. We have taken these steps to ensure that we could debate the topic in a climate of mutual trust.

I should like to mention that the Ombudsman has recently recognised, in the precise context of the ACTA negotiations, that it was justified to maintain the confidentiality of some key negotiating documents. The Ombudsman confirmed that the preservation of confidentiality was legal and in line with the 2001 Regulation on access to documents.

Let me now highlight some of the main features of ACTA. Firstly, a broad coverage of intellectual property rights (IPRs). Given the diversity of IPRs, on which European operators rely to protect their inventions, we have fought for, and obtained, broad coverage. In particular, we have managed to ensure that Europe’s geographical indications (GIs) will be treated equally.

This is an EU success. It would not be in the draft ACTA Treaty without the European Commission. I know that it may not go as far as some would have liked – for example as regards border measures. Justified differences will remain, and ACTA Parties will not have to adopt the EU system of protecting GIs through sui generis systems.

Secondly, ACTA defines for the first time an international standard for intellectual property infringements on the internet. The internet is the most global, open and fast-moving market environment, where music, films, books and software circulate. Millions of counterfeit goods are traded every day through the internet. ACTA thus represents a ground-breaking – yet balanced – level of harmonisation and transparency for the rules applicable to such infringements, whilst remaining fully in line with the EU acquis.

Let me stress that ACTA will not change the EU acquis. Our negotiating guidelines requested this and we have scrupulously respected it, as you can see from the text.

Thirdly, ACTA provides a balanced agreement, which replies to the four main concerns expressed by Members, for the following four reasons.

Firstly, the text does not affect the protection of fundamental rights, privacy and data protection.

Secondly, it respects the important role of free internet and safeguards the role of service providers, as well as the European system of copyright exceptions, such as the European regime of conditional exemption of liability for internet operators. European exceptions, like private or educational use, will also remain valid.

Thirdly, the text refers to those provisions of the TRIPS Agreement that safeguard the essential balance between the rights of the right holders and the public interest, and that stress the ‘need for intellectual property rights to contribute to technical innovation, socio-economic welfare, or the protection of health’.

Fourthly, ACTA explicitly recognises the importance of guaranteeing access to medicines, by referring to the Doha Declaration on the matter, as well as by explicitly excluding patent infringements from the sections on border and penal enforcement.

What is the state of play and the next steps in ACTA? Well, in Tokyo it was not possible to finalise the text. The parties kept a few reservations, which still need to be addressed in the coming weeks. There are, in particular, two issues open.

Firstly, should patent infringements be included or excluded from the scope of civil litigation measures? I would be interested to hear your views on this issue. I am concerned that a blanket exclusion of patents – an important intellectual property right – might risk depriving many industries of the benefits of this chapter. I am thinking, for example, of the automotive, machinery, pharmaceutical and agro-chemical sectors.

Secondly, the other important issue has to do with the EU proposal that the internet measures stipulated in ACTA must apply not only to copyright but – at least – also to trademark violations. As you know, on the internet, you can find thousands of offers for fake goods using European brands, be it for clothes, cosmetics, watches or even foodstuffs. I believe we should address these infringements made through the internet because they are basically identical to real-life infringements concerning physical goods.

To conclude, I am firmly convinced of the importance of tackling the widespread abuse of European intellectual property around the world. ACTA can provide an important contribution towards this goal, in full compliance with existing European legislation. ACTA is the first important international agreement on IPRs since the TRIPS Agreement in the WTO back in 1994. It also strikes a proper balance with the rights of citizens and consumers.

I look forward to a continued close dialogue with the European Parliament and towards the successful conclusion of the agreement and its subsequent approval.