October 15, 2011

Negotiator’s notes on ACTA

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The European Commission released the (final) negotiator’s Notes on ACTA on 6 October 2011.

Request for access to documents – Gestdem 2011-4206

Dear Mr Wessels,

I refer to your request of 1 August, 2011 in which, you ask to receive the Commission’s Negotiator’s Notes on ACTA.

As regards the so-called “negotiators’ notes”, let me first clarify their nature. “Negotiators’ Notes” have been added in the evolving versions of the draft negotiating text (the “consolidated” text) as footnotes. These “Negotiators’ Notes” varied considerably in content: some were mere reminders for a verification of the coherence of language at the final “legal scrub” or for the applicability of a certain definition already used somewhere else in the text, while others were added to reflect the interpretation that one or more Parties had of a certain concept. They also changed from one round of negotiations to the next, as issues were clarified or Parties made alternative proposals or accepted new compromises.

In the text agreed at the end of the final round, 10 such “Negotiators’ Notes” remained. Five of them referred to clerical issues that were addressed subsequently when the text was “legally scrubbed” to become the definitive version. Regarding the other five, all referring to Article 2.18 of the ACTA text released on 6 October 2010, (which became Article 27 ACTA in the definitive text) there was no consensus among the Parties to adopt them as footnotes to the Agreement, therefore they are not part of the ACTA. Consequently, the “Negotiators’ Notes” that remain, may have mere interpretative value to help understand the negotiators’ views about certain parts of the Article in question.

The “Negotiators’ Notes” which remained in the final version of ACTA were the following (for ease of reference, the Article numbers and page numbering mentioned below are those of the ACTA text of 6 October 2010, available at:
http://trade.ec.europa.eu/doclib/docs/2010/october/tradoc 146699.pdf)

1. Page 2, referring to the first sentence of the recitals “The Parties to this Agreement”: “Negotiator’s Note: insert footnote in Article 6.1 of list of negotiating parties.”

2. Page 9, referring to the heading “Article 2.X: Small Consignments and Personal Luggage”: “Negotiator’s Note: To be checked in legal scrub. ”

3. Page 12, referring to the first sentence of Article 2,13 “Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of information”: “Negotiator’s note: legal scrub pending. ”

4. Page 12, referring to the heading “Section 3: Criminal Enforcement”: “Negotiator’s Note: Definitions of “counterfeit trademark goods” and “pirated copyright goods” provided for in footnotes [ ] and [ ] of Section 2 (Border Measures) should be used as context for this Section. ”

5. Page 13, referring to the sentence in Article 2.14.2(a) “to which a mark has been applied without authorization which is identical to or cannot be distinguished from a trademark registered in its territory; and”: “Negotiator’s Note: To be checkedin legal scrub.”

6. Page 16, referring to Article 2.18.5 and .7: “Negotiator’s Note: “Rights” in paragraphs (5) and (7) reflect WPPT and WCT standard.”

7. Page 16, referring to Article 2.18.6: “Negotiator’s Note: As used in paragraph 6, the term “computerprograms” can be understood to encompass software.”

8. Page 16, referring to Article 2.18.6(a): “Negotiator’s Note: “To the extent provided by its law” means that Parties have flexibility in implementing paragraphs 6(a) (i) and (it).”

9. Page 16, referring to Article 2.18.6(b)(ii): “Negotiator’s Note: As used in paragraph 6(b), the word “purpose” can be interpreted as the function of the device, or product, including computerprograms or software, or the provision of a service.”

10. Page 16, referring to the footnote 24 to Article 2.18.6(b) (ii): “Negotiator’s Note: The intention of this provision is that this Agreement does not require a Party to mandate interoperability in its law, i.e., there is no obligation for the ICT (Information Communication Technology) industry to design devices, products, components, or services to correspond to certain technological protection measures. ”

We hope this letter and information will meet your needs. I also take the opportunity of reminding you that the enclosed documents cannot be reproduced or disseminated for commercial purposes unless the Commission has first been consulted.

Yours sincerely,

Anders C JESSEN
Head of Unit