By Monika Ermert for Intellectual Property Watch
As negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) continued in Paris this week with again no public details the European Parliament Thursday sent a strong signal by requesting transparency in the negotiations.

Parliament meeting in Strasbourg on 18 December passed a resolution on the impact of counterfeiting in international trade “calls on the [European] Commission and the member states to negotiate ACTA under conditions of the utmost transparency towards the EU citizen.” Parliament also demanded clear limits to the scope of ACTA in various aspects.

“In all envisaged IP enforcement agreements personal use, that is not for profit, must be distinguished from fraudulent and intentional marketing and counterfeit and pirated goods,” reads the resolution. It also asks that ACTA not “grant public authorities access to private computers and other electronic devices.” ACTA should not be used as a “vehicle for modifying the existing European IPR enforcement framework.” ACTA must concentrate on “IPR enforcement measures and not on substantive IPR issues such as the scope of protection limitations and exceptions,” says the resolution.

Many members of the Parliament in the debate Wednesday just before midnight underlined the need for IP protection and presented a dark picture with regard to the possible connection of piracy and counterfeiting with organised crime and consumer safety and privacy risks. European People’s Party (EPP) member Jacques Toubon, former French Minister of Culture and Minister of Justice, said “counterfeiting is a plague which has been underestimated in its dimension.” He was clearly disappointed by the Parliament’s proposal, he said, which was far too timid.

Secrecy “Hurts in Fight Against Piracy”

But there was also considerable criticism of the ACTA negotiations during the debate. Christofer Fjellner, Swedish member of the EPP, complained that the Parliament had to act on rumours with regard to the texts discussed so far.

“It is a shame that we have to define what we do not want ACTA to be,” he said. “[The] culture of secrecy and rumours hurts us in the fight against piracy.” He also said, “We must ensure that tools don’t become worse than piracy itself.” Fjellner said there were concerns, for example, with regard to privacy of computer and internet users.

The Parliament admonishes negotiators at the European Commission, the European Union executive body, to consider effects with regard to civil rights and also ask the Commission explicitly to “take into account certain strong criticism of ACTA” including the intrusion of privacy without due legal process, criminalisation of non-commercial copyright and trademark infringements, the reinforcement of digital rights management at the cost of “fair use“ and an obligation for signatories “to cover the cost of enforcement of copyright.”

No Third Party Liability in ACTA

The Green Party wanted to go one step further than the original resolution tabled by Gianluca Susta (Liberal Party, ALDE), rapporteur for the Trade Committee. Green Party members pushed to limit ACTA’s scope even more and exclude intermediary liability and surprisingly managed to win the majority vote for their alternative resolution text, which was carried by a vote of 309 to 232.

The result is that ACTA negotiators are asked to not deal with “liability of intermediaries.” Liability of third parties like internet service providers or providers of portals has been one concern of large internet companies and also civil rights organisations that have campaigned against ACTA since the start of formal negotiations in late 2007.

Also in the alternative resolution, travellers are no longer viewed “as equal actors in counterfeiting and piracy,” the Greens said in a memo after the vote. Plus, the report “no longer carried any formulation on asking for criminal measures against counterfeiting and piracy at the borders“ and “no longer asked for ‘qualitative data’ of internet traffic,“ which Green Party members also saw as a possible path to provider responsibility.

In order to push their proposal the Greens withdrew one more change that would have questioned the whole concept of criminal sanctions as a way to better protection against piracy.

To push their alternative against the original report prepared by rapporteur Susta, Green Party member Carl Schlyter immediately before the vote presented an oral amendment withdrawing a change to the rapporteur’s draft that consisted a strong statement against criminal sanctions as an instrument in the fight against piracy. The statement said Parliament remained “unconvinced about a strong emphasis on criminal sanctions.”

“Raising consumer awareness, the bolstering of spending power and the fight against corporate manipulation of price setting” was regarded as far more effective in the fight against piracy, wrote the Greens. Yet this change was expected to be completely unacceptable to many in the Socialist and the conservative group. In the end, confusion during the voting process contributed to the outcome.

More Differentiation Seen

Eva Lichtenberger, Green Party member and rapporteur for the Parliament’s Legal Committee, said she was satisfied with the result. “We need different strategies for product counterfeiting on one hand and internet downloading on the other,” she said.

During the debate, numbers presented mainly covered pirated CD and DVDs or designer goods, but claims for stricter protection and enforcement were highly linked to the health and security risks arising from counterfeited medicine or airplane parts.

“We do not have clear statistics with regard to the risks,” said Lichtenberger, referring to earlier research in the EU about the risks from counterfeited car parts as an example. “Evidence was scarce with regard to the risks,” she said. What had to be avoided was an ever stricter IP regime to erect trade barriers by companies.

The resolution demands more research on health and safety risks, but also clearly asks for differentiation in the area of drugs. “A distinction needs to be drawn between generic medicines, the circulation of and trading in which should be encouraged both in the EU and in developing countries, and counterfeit medicines.”

Another distinction asked for is between countries that produce counterfeit products, those which use them and those through which the products transit. Here the Parliament asks for a Commission proposal to ensure proper dealing with export, transit and trans-shipment operations within the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). With regard to the relation of organised crime and counterfeiting the Parliament asks to support the drafting on a protocol on counterfeiting in addition to the Palermo international convention on organised crime.

Effect of the Report

With regard to the effect of the report, Lichtenberger said, she remained sceptical about an opening up of ACTA negotiations. Lichtenberger argued in her report and speech during the debate that the legal basis for mandating the Commission to negotiate for the Union was disputable. In fact, Parliament also accepted text in the resolution that calls into question the Commission competency.

EPP Member Daniel Caspary, member of the Trade Committee of the Parliament, said with regard to the openness question: “We need the Lisbon Treaty.” The Lisbon Treaty will allow the Parliament to participate in the definition of the mandate and vote on any possible final ACTA document before it can be signed for Europe. Caspary said he did not expect ACTA to be concluded before next summer. By then the US will have a new administration and while Caspary said he did not expect much change with regard to ACTA negotiations, Lichtenberger disagreed. “Reading the new internet policy agenda of President-elect Obama, I see a lot of common ground.”

US Statement on Fourth Round of Negotiations

The US negotiators participating in the ACTA talks this week in Paris issued a statement before leaving the French capital, pointing to a consensus by negotiators on the importance of “transparency“ and “holding further discussions on sharing additional information with the public.” While this seems to address the very concerns of the Parliament, stakeholder discussions mentioned in the US statement so far had been rather limited.

Summing up general results from the fourth round of negotiations, the USTR spokesman said in a statement: “Participants reaffirmed their commitments to negotiate an agreement to combat global infringements of IPR, particularly in the context of counterfeiting and piracy, by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement, and strengthening relevant IPR enforcement measures themselves.” Discussion this time focussed on international cooperation, enforcement practices and institutional issues. Previous discussions on criminal enforcement of IPR were continued and information was shared on “approaches to fighting IPR infringements on the internet,” he said. The fifth round will take place in Morocco in March 2009.

Monika Ermert may be reached at info@ip-watch.ch.