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SPEECH/ 10/83

Karel De Gucht

European Commissioner for Trade

Transparenc y and state of play of the ACTA negotiations (Anti-Counterfeiting Trade Agreement)

Figures and graphics available in PDF and WORD PROCESSED

Speaking Points for Debate on Anti-Counterfeiting Trade Agreement (ACTA), European Parliament

Strasbourg, 9 March 2010

I understand your concer ns about the ACTA negotiations.

Let me first recall that we are negotiating this agreement in order to improve the protection of innovation made in Europe in all areas where Intellectual Property Rights can be breached.

If we want to remain a competitive economy, we will have to rely on innovation, creativity and brand exclusivity. This is one of our main comparative advantages on the world market. So we need the tools to ensure that this comparative advantage is adequately protected in our main export markets.

We have tried to raise this issue for several years in multilateral organisations like the WTO or the World Intellectual Property Organisation, but these attempts were systematically blocked by other countries.

So despite our preference for a truly global solution, we had no other choice but to engage into a coalition of the willing. The final agreement will only be binding on these countries that have signed, although we would of course be happy if more countries, and especially emerging economies, could subsequently join.

As I said during my hearing, these international negotiations are confidential. This is not unusual. Negotiations are about seeking an agreed outcome and require a minimum of confidentiality for each party to feel comfortable to make concessions and/or to try options before finally settling for an agreement.

On the other hand, I agree that the EP needs to be adequately informed about the evolution of the negotiations. We are doing our utmost in two areas to inform the Parliament and to convince our negotiating partners to agree with more transparency.

Firstly, as regards information to the Parliament, we have provided you with the negotiating guidelines, full reports of negotiating rounds, and in general all relevant documents, originating from DG Trade, that have been shared with the Member States through the Trade Policy Committee. We have done this in accordance with the framework agreement.

Also, ACTA has been discussed several times in INTA in the last 3 years.

Let me add to this that the Commission organised two stakeholder conferences on ACTA (in June 2008 and April 2009) which were open to all - citizens, industry, NGOs and the media. Another public conference will be organised on 22 March in Brussels.

I understand that you may feel that this is not sufficient for you to have a clear picture on where we stand in these negotiations.

I have instructed my services to provide dedicated briefings with interested MEPs on all aspects of the negotiations. They will be at your disposal for discussion before and after each further negotiating round.

Secondly, I realize that the best way for you to know what is going on in these negotiations, would be to read the draft negotiating text. This would give you a very clear picture of where exactly we are in those negotiations.

As you probably know, there is an agreement amongst ACTA parties that the negotiating text can only be made public if all parties agree.

The Commission is in favour of releasing the negotiating documents as soon as possible. However, a few ACTA negotiating parties remain opposed to an early release.

I strongly disagree with their approach, but I can not unilaterally breach a confidentiality commitment. My credibility as a negotiator is at stake. Nevertheless, I will see to it that at the next negotiating round, in April, the Commission will vigorously push its negotiating partners to agree to release the text and I will raise European Parliament concerns bilaterally with ACTA parties like the US I am scheduled to meet before then.

It is in the interest of all, that everyone can have a clear idea of what exactly these negotiations are about, and, even more importantly, also of what they are not about.

Finally, as regards your concerns on substance, I would like to recall the main principles that drive the Commission in negotiating this agreement:

First, the objective is to address large-scale infringements of intellectual property rights which have a significant commercial impact. It will not lead to limitation of civil liberties or harassment of consumers.

Secondly, ACTA is only about enforcement of intellectual property rights. It will not include provisions modifying substantive intellectual property law, such as the creation of new rights or their scope of protection of their duration. However, it should set minimum rules on how innovators can enforce their rights in courts, at the borders or over the internet. For example, a European fashion designer, when confronted with counterfeiting of his creations outside Europe, can ensure that his rights are adequately safeguarded abroad.

Thirdly, ACTA must remain in line with the EU acquis, including the current level of harmonisation of IPR enforcement, the e-commerce Directive, the Regulatory Telecom Framework, and, last but not least, the applicable EU legislation on data protection and privacy. There will be no harmonisation or changes to EU legislation through the back door.

In this sense, ACTA will have no impact on European citizens, since it will not create new obligations for the EU and no need for implementing legislation. However, it will provide our innovators increased protection in overseas markets.

I am aware of the concerns expressed by some of you about the introduction of a compulsory "3 strikes rule" or a "graduated response" system to fight copyright infringements and internet piracy.

Let me be very clear on this, so there is no room for ambiguity. The 'three-strike rule' or graduated response systems are not compulsory in Europe. Different EU countries have different approaches, and we want to keep this flexibility, while fully respecting fundamental rights, freedoms and civil liberties.

The EU does not support and will not accept that ACTA creates an obligation to disconnect people from the internet because of illegal downloads.

Similarly, we shall make sure that ACTA does not hamper access to generic medicines. I know there has been some controversy on the impact of EU customs legislation on trade in generic medicines. As I already told you at my hearing: this problem will be addressed in the upcoming revision of our customs legislation.

Finally, you have also asked about an impact assessment of ACTA. In fact, considering that the Commission will not go beyond the EU acquis, we based ourselves on the studies made for the 2004 Directive on the enforcement of Intellectual Property Rights and for the 2005 proposal for a Directive on criminal en forcement of IPR (not adopted).

We have also considered the conclusions of the OECD Study on the Economic Impact of Counterfeiting and Piracy of 2008. This study values the economy of physical internationally traded counterfeits at $ 250 bn (that is to say higher than the individual GDP of 150 countries!). It also contains an exhaustive analysis dedicated to the Piracy of Digital Content.

In short, I hear your concerns and I will defend them to the best of my ability. Your confidence and support will help me carry this important task forward.

Thank you, President.

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