LIBE ACTA report amendments

De La Quadrature du Net
Update (31/05/2012): See La Quadrature's final voting list (.doc), with compromise amendments (below table). Most important amendment to adopt is compromise amendment 10.

On May 31st, 2012, the LIBE committee of the EU Parliament will adopt amendments to its report on ACTA.

Below are the amendments tabled on the draft report, graded by La Quadrature. Generally speaking, grades depend on whether amendments acknowledge ACTA's dangerous flaws and understand the need to reform copyright so as to adapt it to new technologies and social practices. Also, amendments aimed at delaying the procedure have been graded negatively.

La Quadrature du Net recommends:

  • to reject amendments 21, 22, 23, 37, which minimise the lack of safeguards in ACTA or else falsely suggest that ACTA's dangers can be addresses by the Commission and/or Member States in the course of implementaiton.
  • to adopt amendments 42, which calls on the Trade committee to recommend that the Parliament withhold consent to ACTA, as well as amendements 24, 27, 29, 36 which stress the dangers of privatised copyright enforcement and stress the need for a revised approach to copyright enforcement.


Amendments 1 – 10[modifier]

Amendment 1 +[modifier]

Amendement 1
Paragraph 1
Cornelia Ernst (Germany / GUE/NGL)
+

1. Acknowledges that intellectual property rights (IPRs) are important tools for the Union in the ‘knowledge economy’ and that adequate enforcement of IPRs is key; recalls that infringements of IPRs harm growth, competitiveness and innovation; points out that ACTA does not create new IPRs, but is an enforcement treaty aimed at tackling effectively IPR infringements;

deleted

Comments: There is no clear data on the scale and impact of copyright infringement.

Amendment 2 -[modifier]

Amendement 2
Paragraph 1 a (new)
Simon Busuttil (Malta / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Frank Engel (Luxembourg / EPP), Zuzana Roithová (Czech Republic / EPP), Salvador Sedó i Alabart (Spain / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
-

1a. Reiterates that Europe needs an international agreement to step up the fight against counterfeit products as these products are causing billions of Euros of damage every year to European companies, thereby also putting European jobs at risk; notes that in addition, counterfeit products often do not fulfil European safety requirements, posing significant health hazards to consumers;

Comments: Paves the way for the next ACTA. Ignores territorial principle, and the responsibility of the EU member states for domestic customs enforcement against single market imports from third nations. For matters within third nations the principles of Article 2 UN Charta apply.

Amendment 3 -[modifier]

Amendement 3
Paragraph 1 b (new)
Simon Busuttil (Malta / EPP), Frank Engel (Luxembourg / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Zuzana Roithová (Czech Republic / EPP), Salvador Sedó i Alabart (Spain / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Georgios Papanikolaou (Greece / EPP), Manfred Weber (Germany / EPP)
-

1b. Notes that ACTA must fully respect Union law, especially the Charter and the data protection acquis; reiterates that it is important that ACTA is not open to any interpretation that could lead Member States to infringe the Charter when implementing provisions of ACTA and therefore calls on the Commission and Member States to ensure legal clarity in the provisions of ACTA;

Comments: Suggests that ACTA procedure should be postponed, pending clarification on the part of the EU Commission.

Amendment 4 +[modifier]

Amendement 4
Paragraph 2
Zuzana Roithová (Czech Republic / EPP)
+

2. Recalls that both the content of previous versions of the agreement as well as the current text together with the level of transparency connected with the negotiations of the agreement have been questioned repeatedly by Parliament;

2. Recalls that the content of previous versions of the agreement together with the level of transparency connected with the negotiations have been questioned repeatedly by Parliament(1);

Comments: (1)See, for example, EP resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations, P7_TA(2010)0058; The lack of a transparent process for the Anti‑Counterfeiting Trade Agreement (ACTA), declaration of the European Parliament of 9 September 2010 on the lack of a transparent process and potentially objectionable content of the Anti‑Counterfeiting Trade Agreement (ACTA), P7_TA(2010)0317.

Amendment 5 +[modifier]

Amendement 5
Paragraph 2
Dimitrios Droutsas (Greece / SD)
+

2. Recalls that both the content of previous versions of the agreement as well as the current text together with the level of transparency connected with the negotiations of the agreement have been questioned repeatedly by Parliament;

2. Recalls that both the content of previous versions of the agreement as well as the current text together with the level of transparency connected with the negotiations of the agreement have been questioned repeatedly by Parliament; underlines that in line with Article 218(10) of the Treaty on the Functioning of the European Union (TFEU) Parliament must be immediately and fully informed at all stages of the procedure; takes the view that adequate transparency has not been achieved throughout the negotiations on ACTA; recognises that efforts to inform Parliament have been undertaken by the Commission(1), but regrets that the requirement of transparency has been construed very narrowly and only as a result of pressure by Parliament and civil society;

Comments: (1) http://ec.europa.eu/trade/tackling-unfair-trade/acta/transparency/

Amendment 6 +[modifier]

Amendement 6
Paragraph 3
Sonia Alfano (Italy / ALDE), Stanimir Ilchev (Bulgaria / ALDE), Sophia in 't Veld (Netherlands / ALDE), Sarah Ludford (UK / ALDE), Gianni Vattimo (Italy / ALDE), Renate Weber (Romania / ALDE), Alexander Alvaro (Germany / ALDE)
+

3. Underlines, at the same time, that it is crucial to strike the appropriate balance between enforcement of IPRs and fundamental rights such as freedom of expression, the right to privacy and protection of personal data, the right to due process and recalls the case-law of the Court of Justice of the European Union (CJEU) as regards this fair balance,

3. Underlines, at the same time, that it is crucial to strike the appropriate balance between enforcement of IPRs and fundamental rights such as freedom of expression, the right to privacy and protection of personal data and confidentiality of communications, the right to due process -notably the presumption of innocence and effective judicial protecton(1) - and recalls the case-law of the Court of Justice of the European Union (CJEU) as regards this fair balance;

Comments: (1)See also in this sense the Opinion of the EDPS of 24 April 2012 http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2012/12-04-24_ACTA_EN.pdf. This amendment usefully insist on fundamental legal principles.

Amendment 7 O[modifier]

Amendement 7
Paragraph 3
Zuzana Roithová (Czech Republic / EPP)
O

3. Underlines, at the same time, that it is crucial to strike the appropriate balance between enforcement of IPRs and fundamental rights such as freedom of expression, the right to privacy and protection of personal data, the right to due process and recalls the case-law of the Court of Justice of the European Union (CJEU) as regards this fair balance;

3. Underlines, at the same time, that it is crucial to strike the appropriate balance between enforcement of IPRs and fundamental rights such as freedom of expression, the right to privacy and protection of personal data, the right to due process and recalls international treaties (1), European law (2) and the case-law of the Court of Justice of the European Union (CJEU) as regards this fair balance;

Comments:(1) In this regard, see Article 7(1) of the TRIPS Agreement and the preambles to the WCT and the WPPT.
(2) See recitals 3, 9 and 31 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
In this regard, see point d) of the Opinion of European Academics on Anti‑Counterfeiting Trade Agreement. http://www.iri.uni-hannover.de/tl_files/pdf/ACTA_opinion_200111_2.pdf (in English); See C-275/06, Promusicae, 200, ECR I-271 (points 62–68), case C-70/10, Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (point 44), case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v. Netlog NV (points 42–44) and case C-461/10, Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget AB, Storyside AB v. Perfect Communication Sweden AB.

Amendment 8 -[modifier]

Amendement 8
Paragraph 3a (new)
Zuzana Roithová (Czech Republic / EPP)
-

3a. In this respect stresses that intellectual property rights are themselves among the fundamental rights protected under Article 17(2) of the EU Charter of Fundamental Rights and under international agreements(1);

Comments: (1)See, for example, Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic, Social and Cultural Rights.

This AM Unnecessarily suggests that "property right" are of same legal importance as freedom of expression and privacy (even if AM 11, tabled by Mrs Roithová suggests otherwise).

Amendment 9 -[modifier]

Amendement 9
Paragraph 3a (new)
Alexander Alvaro (Germany / ALDE), Sarah Ludford (UK / ALDE)
-

3a. Notes the safeguards contained in ACTA on privacy, due process and proportionality and the fact that implementation of ACTA in the Union must be subject to and constrained by the requirements of Union and national law on the protection of fundamental rights;

Comments: Dangerously suggests that the lack of safeguard within ACTA can be compensated by community and national legal principles. Among other things, this view overlooks the impact of ACTA in countries that do not have the same degree of protection for fundamental rights. Even in the EU, this raises problems, especially when one considers the vagueness of ACTA.

Amendment 10 -[modifier]

Amendement 10
Paragraph 3b (new)
Zuzana Roithová (Czech Republic / EPP)
-

3b. Recalls that a number of internal and external limits on intellectual property rights, such as the prevention of unilateral abuse(1), contribute to establishing an appropriate balance between the enforcement of intellectual property rights and the fundamental rights and interests of the public;

Comments: (1)See Article 8(2) of the TRIPS Agreement. Dangerously suggests that the lack of safeguard within ACTA can be compensated by community and national legal principles.

Amendments 11 – 20[modifier]

Amendment 11 +[modifier]

Amendement 11
Paragraph 3c (new)
Zuzana Roithová (Czech Republic / EPP)
+

3c. Points out that fundamental rights are, by nature, based on a number of assumptions(1): they are universal, based on rights relating to the personality and on non‑material interests; they are non‑transferable and do not cease; they emanate from the person, are innate and are governed by public law; in this regard, a number of objects protected by intellectual property rights only exhibit some of these characteristics, thus it is necessary to distinguish the use of effective tools to protect such rights, e.g., in the case of life‑saving medicines on the one hand or industrial patents to protect designs on the other, from other interests deriving from other fundamental rights such as, for example, protecting human health;

Comments: (1)GROSHEIDE, W. Intellectual Property and Human Rights: A Paradox. 1st edition, Cheltenham: Edward Elgar Publishing, 2010. p328. ISBN 978-1848444478. p21.

Amendment 12 O[modifier]

Amendement 12
Paragraph 3d (new)
Zuzana Roithová (Czech Republic / EPP)
O

3d. Recalls that ACTA, if adopted, would be equivalent to an international agreement signed by the EU, would be binding upon the European institutions and the Member States and would be an integral part of the EU legal order having direct effect(1);

Comments:(1)See case C-135/10 SCF v. Del Corso, Decision points 37 - 39.

Amendment 13 O[modifier]

Amendement 13
Paragraph 3e (new)
Zuzana Roithová (Czech Republic / EPP)
O

3e. Points out that, according to European Court of Justice case law, individuals may only rely directly upon the provisions of international agreements signed by the EU when such provisions are, in terms of their content, unconditional and sufficiently precise (i.e., clear and precise obligations have been laid down which are not subject, in their implementation or effects, to the adoption of any subsequent measure); furthermore, the nature and broad logic of the provisions should not preclude their being so relied upon; nevertheless also points out that, where European law features concepts identical to those contained in relevant international agreements, the European provisions must be interpreted, as far as possible, in the light of international law, i.e., taking account of the context in which those concepts are found and the purpose of the relevant provisions of international agreements(1);

Comments: (1)See case C-135/10 SCF v. Del Corso, Decision points 43 - 44.

Amendment 14 +[modifier]

Amendement 14
Paragraph 3f (new)
Zuzana Roithová (Czech Republic / EPP)
+

3f. Considers that Section 5 'Enforcement of Intellectual Property Rights in the Digital Environment' is in particular need of greater clarity and coherence, as inaccuracies and incompleteness may result in divergent national rules, and such a fragmented system would act as an obstacle to the internal market, which, in the case of the internet environment, would preclude the wider cross‑border use of the object protected by intellectual property rights;

Comments:

Amendment 15 +[modifier]

Amendement 15
Paragraph 3g (new)
Zuzana Roithová (Czech Republic / EPP)
+

3g. Considers that ACTA does not contain explicit guarantees concerning the protection of sensitive personal information, the right of defence (particularly the right to be heard) or the presumption of innocence;

Comments: While 3g is true it may appear counter-factual to naive readers of ACTA. They may argue that the agreement does pay lip service to precisely these issues, in Art 4 and Art 27, and the deceptive form of what is laid down in ACTA is not obvious. The am is helpful because it invokes the paradoxon.

Amendment 16 O[modifier]

Amendement 16
Paragraph 3h (new)
Zuzana Roithová (Czech Republic / EPP)
O

3h. Recalls that according to Article 49 of the EU Charter of Fundamental Rights: ‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’; points out in this regard that the scope of several provisions set out in Section 4: Criminal Enforcement is ill‑defined;

Comments:

Amendment 17 +[modifier]

Amendement 17
Paragraph 3i (new)
Zuzana Roithová (Czech Republic / EPP)
+

3i. Considers that ACTA does not provide guarantees on preserving the right to respect for private life and communications arising from Article 7 of the EU Charter of Fundamental Rights;

Comments:

Amendment 18 +[modifier]

Amendement 18
Paragraph 3j (new)
Zuzana Roithová (Czech Republic / EPP)
+

3j. Wonders whether the concepts set out in ACTA, such as the basic principles or the concept of ‘fair process’, are compatible with the concepts set out in the EU Charter of Fundamental Rights, such as fundamental rights or the right to a fair trial arising from Article 47;

Comments:

Amendment 19 +[modifier]

Amendement 19
Paragraph 7a (new)
Dimitrios Droutsas (Greece / SD)
+

7a. Reiterates that limitations on the exercise of the rights and freedoms recognised by the Charter must comply with the provisions of the ECHR and with Article 52 of the Charter which prescribe that such limitations be provided for by law, necessary and proportionate to the legitimate aims pursued;

Comments: Useful amendment stressing the legal framework and, implicitly, how ACTA's privatized enforcement measures might fall outside of work.

Amendment 20 WITHDRAWN[modifier]

Amendement 20
Paragraph 9
Alexander Alvaro (Germany / ALDE), Sarah Ludford (UK / ALDE), Louis Michel (Belgium / ALDE)
WITHDRAWN

9. Recalls that the Commission has decided to refer ACTA to the CJEU on the question of whether ACTA is compatible with Union Treaties, in particular the Charter;

9. Recalls that the Commission has decided to refer ACTA to the CJEU on the question of whether ACTA is compatible with Union Treaties, in particular the Charter, and believes that the Parliament's final position on ACTA should only be taken after the CJEU has given its judgement on this matter;

Comments: This amendement would have comforted the EU Commission's delaying tactics.

Amendments 21 – 30[modifier]

Amendment 21 --[modifier]

Amendement 21
Paragraph 9
Anthea McIntyre (UK / ECR)
--

9. Recalls that the Commission has decided to refer ACTA to the CJEU on the question of whether ACTA is compatible with Union Treaties, in particular the Charter;

9. Recalls that the Commission has decided to refer ACTA to the CJEU on the question of whether ACTA is compatible with Union Treaties, in particular the Charter; urges that the Parliament's final decision be taken only after the judgement of the CJEU is known;

Comments: This amendment would suspend the final vote on ACTA pending the EU court of Justice opinion on ACTA. Waiting for an ECJ referral would narrow down the debate to legal issues. Through these initiatives, the Parliament would be perceived as escaping its political responsibility.

Amendment 22 --[modifier]

Amendement 22
Paragraph 9a (new)
Simon Busuttil (Malta / EPP), Frank Engel (Luxembourg / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Salvador Sedó i Alabart (Spain / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
--

9a. Notes that concern has especially been raised on those provisions that leave room for flexibility in their implementation, on the basis that these provisions might be implemented in the Union in a manner that could be illegal or contrary to fundamental rights; considers that this is an unsubstantiated assumption which is contrary to the general principles of law and to the letter of ACTA itself as it explicitly requires that the optional or flexible provisions therein be implemented in compliance with fundamental rights and applicable domestic provisions; reiterates however that this does not justify ambiguities contained in ACTA;

Comments: This amendment overlooks the fact that ACTA fails to foreclose implementations measures that would be harmful to fundamental rights, while general legal principles cannot be considered to provide sufficient safeguard against ACTA's worst provisions, especially against privatised enforcement. Indeed, general principles of law create obligation on states, not private parties. Actually, many dangerous practices of online copyright enforcement are being carried on, and general principles of law have so fare proved insufficient to address them.

Finally, it must be noted that AM22 takes a view contradicted by many scholars, NGOs and public institutions (see the list of critics of ACTA):

  • An independent study commissioned by the INTA committee stresses that “in some cases, ACTA is arguably more ambitious than EU law, providing a degree of protection that appears to go beyond the limits established in EU law.”
  • Leading European academics have also shown how ACTA clashes both with EU law and with the enforcement provisions of the TRIPS Agreement, particularly on border measures, damages, and lack of safeguards.
  • In an opinion criticizing the EU Commission's IPR Strategy, the European Economic and Social Committee stressed that “fundamental human rights, such as the right to information, health, sufficient food, the right of farmers to select seeds and the right to culture, are not taken sufficiently into consideration”.4 This is confirmed by the OSCE Representative on Freedom of the Media, Dunja Mijatović, in a letter sent to the President of the EU Parliament.

Amendment 23 --[modifier]

Amendement 23
Paragraph 9b (new)
Simon Busuttil (Malta / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
--

9b. Notes that despite the ambiguities that remain in ACTA, there is no evidence whatsoever, not even in the European Data Protection Supervisor's opinion on ACTA, that it goes contrary to Union law or that it violates fundamental rights and freedoms in any manner;

Comments: This amendments is based on a biased reading of the EDPS opinion, to say the least. The EDPS clearly points to the dangers of ACTA for fundamental rights. Same statement as DeGucht's.

Amendment 24 ++[modifier]

Amendement 24
Paragraph 12
Dimitrios Droutsas (Greece / SD)
++

12. Underlines that there is still significant legal uncertainty in the manner in which some key provisions of ACTA have been drafted (e.g. Article 11 (Information related to Infringements), Article 23 (criminal offences), Article 27 (scope of the enforcement measures in the digital environment), especially Article 27(3) (cooperation mechanisms),and Article 27(4)); warns against the potential to deliver 'fragmented approaches within the EU' with risks of inadequate compliance with the right to protection of personal data;

12. Underlines that there is still significant legal uncertainty in the manner in which some key provisions of ACTA have been drafted (e.g. Article 11 (Information related to Infringements), Article 23 (criminal offences), Article 27 (scope of the enforcement measures in the digital environment), especially Article 27(3) (cooperation mechanisms),and Article 27(4)); warns against the potential to deliver 'fragmented approaches within the EU' with risks of inadequate compliance with the right to protection of personal data; points out that these risks are especially present as regards Article 27(3) and 27(4) in light of the lack of precision of those texts but also having in mind the practices currently taking place in some Member States (e.g. large scale monitoring of Internet by private parties) whose conformity with the Charter is questionable;

Comments: Useful reminder that ongoing practices carried on by online service providers already represent a threat to the protection of fundamental rights, and that ACTA would only comfort and generalise such practices.

Amendment 25 +[modifier]

Amendement 25
Paragraph 12
Cornelia Ernst (Germany / GUE/NGL)
+

12. Underlines that there is still significant legal uncertainty in the manner in which some key provisions of ACTA have been drafted (e.g.: Article 11 -Information related to Infringements; Article 23 on 'criminal offences'; scope of the enforcement measures in the digital environment (Article 27); Article 27(3) on cooperation mechanisms; Article 27(4)); warns against the potential to deliver 'fragmented approaches within the EU' with risks of inadequate compliance with the right to protection of personal data;

12. Underlines that there is still significant legal uncertainty in the manner in which some key provisions of ACTA have been drafted (e.g.: Article 11 -Information related to Infringements; Article 23 on 'criminal offences'; scope of the enforcement measures in the digital environment (Article 27); Article 27(3) on cooperation mechanisms; Article 27(4)); warns against the potential to deliver 'fragmented approaches within the EU' with risks of inadequate compliance with fundamental rights, particularly the right to protection of personal data, the right to due process and the right to conduct business;

Comments: The dangers pointed to in this amendment do not only affect the right to privacy.

Amendment 26 +[modifier]

Amendement 26
Paragraph 12
Josef Weidenholzer (Austria / SD)
+

12. Underlines that there is still significant legal uncertainty in the manner in which some key provisions of ACTA have been drafted (e.g. Article 11 (Information related to Infringements), Article 23 (criminal offences), Article 27 (scope of the enforcement measures in the digital environment), especially Article 27(3) (cooperation mechanisms),and Article 27(4)); warns against the potential to deliver 'fragmented approaches within the EU' with risks of inadequate compliance with the right to protection of personal data;

12. Underlines that there is significant legal uncertainty in the manner in which some key provisions of ACTA have been drafted (e.g. Article 11 (Information related to Infringements), Article 23 (criminal offences), Article 27 (scope of the enforcement measures in the digital environment), especially Article 27(3) (cooperation mechanisms), and Article 27(4)); warns against the potential to deliver 'fragmented approaches within the EU' with risks of inadequate compliance with the right to protection of personal data;

Comments: Useful clarification. ACTA is indeed final.

Amendment 27 ++[modifier]

Amendement 27
Paragraph 13
Dimitrios Droutsas (Greece / SD)
++

13. Moreover, points out, that while several ACTA provisions (e.g. Article 27 (3) and (4)) are of non-mandatory nature and thus do not establish ‘any legal obligation of the Parties which would be contrary to fundamental rights’, the lack of specificity of the provisions, of sufficient limitations and safeguards casts a doubt on the necessary level of legal certainty required from ACTA (e.g. safeguards against misuse of personal data or to protect the right of defence);

13. Moreover, points out, that while several ACTA provisions (e.g. Article 27 (3) and (4)) are of non-mandatory nature and thus do not establish ‘any legal obligation of the Parties which would be contrary to fundamental rights’, the lack of specificity of the provisions, of sufficient limitations and safeguards casts a doubt on the necessary level of legal certainty required from ACTA (e.g. safeguards against misuse of personal data or to protect the right of defence); emphasises that these deficiencies should not be acceptable in an agreement where the Union is a contracting party; recalls that other international agreements with fundamental rights implications have secured a higher level of precision and safeguards(1)

Comments: Focuses on the deficiencies rather than ACTA itself. (1)See for example Council of Europe - Convention on Cybercrime CETS No. 185, Budapest 23 November 2001.

Amendment 28 O[modifier]

Amendement 28
New Title (after paragraph 14)
Dimitrios Droutsas (Greece / SD)
O

The duty to uphold fundamental rights

Comments: Relates to the EU principles of external action.

Amendment 29 ++[modifier]

Amendement 29
Paragraph 14a (new)
Dimitrios Droutsas (Greece / SD)
++

14a. Finds it disappointing that additional and substantial efforts to further consult all the stakeholders and incorporate their views were not undertaken in the run-up to the negotiations on ACTA; deplores that the high standards of transparency and good governance the Union is striving to set have not been met as regards ACTA; believes, therefore, that ACTA comes at a very premature stage in particular with regard to areas where the Union has not yet had the chance to have thorough public deliberation;

Comments: Am 29 highlights the embarassing governance of the process as a result of the uncommon confidentiality. While there were industry stakeholders consultations the text was unavailable. When the text was made available the deliberations were quickly finalised. This applies to input from stakeholders, MEPs and legal scholars alike. Am 29 also hints at the criminal enforcement harmonisation of ACTA which is not yet part of the Acquis, and compromises the EP prerogatives under the Lisbon Treaties.

Amendment 30 -[modifier]

Amendement 30
Paragraph 14a (new)
Simon Busuttil (Malta / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Frank Engel (Luxembourg / EPP), Georgios Papanikolaou (Greece / EPP), Zuzana Roithová (Czech Republic / EPP), Salvador Sedó i Alabart (Spain / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
Draft opinion
-

14a. Emphasises that Internet Service Providers (ISPs) should not police the Internet and therefore calls on the Commission and the Council to ensure legal clarity on the role of ISPs under ACTA;

Comments: This amendments overlooks the fact that the Commission has misrepresented the true impact of ACTA for ISPs. It would have been an important statement if the words "under ACTA" had been kepts out of the amendment, as the EU Commission is due to present its proposal for the revision of the IPRED directive and is currently working on the eCommerce directive, which provides an opportunity for the Commission to clarify the role of ISPs under existing EU law.

Amendments 31 – 40[modifier]

Amendment 31 -[modifier]

Amendement 31
Paragraph 14b (new)
Simon Busuttil (Malta / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Frank Engel (Luxembourg / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
-

14b. Considers that ACTA only targets large-scale infringement of intellectual property rights (IPRs), allowing for signatory states to exempt non-commercial use from its provisions on criminal enforcement procedures; notes, however, that it is unclear where to draw the line between commercial and non-commercial use; calls therefore on the Commission and on Member States to define the notion of infringement of IPRs on a commercial scale and to add legal clarity as to when Member States could impose criminal enforcement measures on internet users;

Comments: Overlooks the fact that ACTA is actually meant to establish a vague and confusing definition of commercial scales to as to encompass not-for-profit infringement, such as file-sharing. Also calls for conditions for criminal measures against internet users and legal clarifications of the EU acquis which are beyond the scope of the dossier.

Amendment 32 +[modifier]

Amendement 32
Paragraph 15
Sonia Alfano (Italy / ALDE), Stanimir Ilchev (Bulgaria / ALDE), Sophia in 't Veld (Netherlands / ALDE), Sarah Ludford (UK / ALDE), Gianni Vattimo (Italy / ALDE), Renate Weber (Romania / ALDE)
+

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

15. Considers that when fundamental rights are at stake there shall be no place for any ambiguity; recalls that the European Court of Human Rights jurisprudence affirms that any limitation to the fundamental rights and freedoms foreseen by law must be foreseeable in its effects, clear and precise and accessible, as well as necessary in a democratic society and proportionate to the aims pursued; underlines that ACTA might create a legal basis for third countries controls and subsequent measures, notably at the borders, on Union citizens travelling outside of the Union, as well as on their properties; moreover and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty;

Comments: Reminder of important legal principles.

Amendment 33 +[modifier]

Amendement 33
Paragraph 15
Dimitrios Droutsas (Greece / SD)
+

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; is of the view that ACTA has not avoided such ambiguity, but, on the contrary, has entailed additional and various layers of ambiguity;

Comments:

Amendment 34 -[modifier]

Amendement 34
Paragraph 15
Simon Busuttil (Malta / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Salvador Sedó i Alabart (Spain / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
-

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in the light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs the remaining serious question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty need to be addressed;

Comments: Again, this AM suggests that ACTA's content can be clarified, but it cannot. It is the final text, and any reassurance that the EU Commission and Member States might give on its implementation would be non-binding.

Amendment 35 +[modifier]

Amendement 35
Paragraph 15
Josef Weidenholzer (Austria / SD)
+

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

15. Considers that when fundamental rights are at stake, ambiguity must be avoided; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

Comments: Strengthens the message.

Amendment 36 ++[modifier]

Amendement 36
Paragraph 15
Josef Weidenholzer (Austria / SD)
++

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

15. Considers that when fundamental rights are at stake ambiguity must be avoided and at the least reduced to a minimum; underlines in this context the importance of differentiating between non-commercial filesharing (data exchange between private persons) and piracy; moreover, and without assigning any wrongful intentions ("procès d'intention") to the ACTA implementation measures, takes the view that in the current state of affairs precaution should be exercised as regards ACTA in light of the serious and remaining question-marks surrounding the balance reached within the agreement between IPRs and other core fundamental rights and its level of legal certainty.

Comments: Even if the redaction could be improved, this amendment stresses a crucial principle on which a revision of the EU Copyright law should be based: the recognition of the legitimacy of not-for-profit sharing of cultural works between individuals. Culture sharing should be placed outside of the scope of copyright, e.g. through the creation of a new exception.

Amendment 37 --[modifier]

Amendement 37
Paragraph 15a (new)
Simon Busuttil (Malta / EPP), Anna Maria Corazza Bildt (Sweden / EPP), Frank Engel (Luxembourg / EPP), Georgios Papanikolaou (Greece / EPP), Zuzana Roithová (Czech Republic / EPP), Salvador Sedó i Alabart (Spain / EPP), Csaba Sógor (Romania / EPP), Axel Voss (Germany / EPP), Manfred Weber (Germany / EPP)
--

15a. Calls therefore on the Commission and on Member States to provide solutions for the concerns identified in this opinion, so as to address ambiguities in ACTA and ensure that the strict observance of fundamental rights and freedoms is clearly guaranteed;

Comments: Again, this AM suggests that ACTA's content can be clarified, but it cannot. It is the final text, and any reassurance that the EU Commission and Member States might give on its implementation would be non-binding.

Amendment 38 +[modifier]

Amendement 38
Paragraph 15a (new)
Dimitrios Droutsas (Greece / SD)
+

15a. Is of the view that ACTA fails to secure adequate safeguards and an appropriate balance between IPRs and other core fundamental rights, as well as failing to secure the necessary legal certainty for key provisions of ACTA;

Comments:

Amendment 39 +[modifier]

Amendement 39
Paragraph 15a (new)
Sonia Alfano (Italy / ALDE), Stanimir Ilchev (Bulgaria / ALDE), Sophia in 't Veld (Netherlands / ALDE), Gianni Vattimo (Italy / ALDE), Renate Weber (Romania / ALDE)
+

15a. Shares the concerns expressed by the EDPS in its opinion on ACTA, notably in relation to the unclear scope, the vague notion of "competent authority", the processing of personal data by ISPs through voluntary enforcement cooperation measures and the lack of appropriate safeguards in relation to fundamental rights;

Comments: Good, but AM 38 by rapporteur might be better.

Amendment 40 +[modifier]

Amendement 40
Paragraph 15b (new)
Sonia Alfano (Italy / ALDE), Stanimir Ilchev (Bulgaria / ALDE), Sophia in 't Veld (Netherlands / ALDE), Gianni Vattimo (Italy / ALDE), Renate Weber (Romania / ALDE)
+

15b. Is of the opinion that ACTA does not comply with the rights enshrined in the Charter;

Comments: Good, but AM 42 by rapporteur probably better.

Amendments 41 – 50[modifier]

Amendment 41 +[modifier]

Amendement 41
Paragraph 15 c (new)
Sonia Alfano (Italy / ALDE), Stanimir Ilchev (Bulgaria / ALDE), Sophia in 't Veld (Netherlands / ALDE), Gianni Vattimo (Italy / ALDE), Renate Weber (Romania / ALDE)
+

15c. Invites the Committee on International Trade, as the committee responsible, to recommend that Parliament declines to consent to the conclusion of ACTA;

Comments: Good, but AM 42 by rapporteur probably better.

Amendment 42 ++[modifier]

Amendement 42
Paragraph 15 a (new)
Dimitrios Droutsas (Greece / SD)
++

15a. In light of all of the above and without prejudice to the CJEU's assessment on the matter, but taking into consideration Parliament's role in the protection and promotion of fundamental rights, concludes that ACTA is incompatible with the rights enshrined in the Charter and calls on the Committee on International Trade, as the committee responsible, to recommend that Parliament declines to consent to the conclusion of ACTA.

Comments: Crucial amendment to draw clear conclusions in view of the INTA report and the final vote of the Parliament on ACTA. Make it a 15b, after 15a from AM38?

Amendment 43 +[modifier]

Amendement 43
Paragraph 15 a (new)
Cornelia Ernst (Germany / GUE/NGL)
+

15a. Takes the view therefore that the conclusion of ACTA would be detrimental to European values and incompatible with the European model; calls on the Committee on International Trade, as the committee responsible, to recommend that Parliament declines to consent to the conclusion of ACTA.

Comments: Good, but AM 42 by rapporteur probably better.

Amendment 44 +[modifier]

Amendement 44
Paragraph 15 a (new)
Jacek Protasiewicz (Poland / EPP)
+

15a. The Committee on Civil Liberties, Justice and Home Affairs therefore calls on the Committee on International Trade, as the committee responsible, to recommend that Parliament declines to consent to the conclusion of ACTA.

Comments: Good, but AM 42 by rapporteur probably better.

Amendment 45 +[modifier]

Amendement 45
Paragraph 15 a (new)
Carl Schlyter (Sweden / Greens/EFA)
+

15a. Calls on the Committee of International Trade, as the committee responsible, to recommend that Parliament declines to consent, pursuant to Article 218(6) TFEU, to the conclusion of ACTA;

Comments: Good, but AM 42 by rapporteur probably better.

Amendment 46 -[modifier]

Amendement 46
Paragraph 15 a (new)
Zuzana Roithová (Czech Republic / EPP)
-

15a. Considers that the current ACTA text contains articles that pose certain risks of possibly breaching the fundamental rights that European citizens have enjoyed thus far;

Comments: Overlooks the need for the LIBE committee to draw clear conclusions from its analysis of ACTA by calling for the rejection of the agreement.

Amendment 47 +[modifier]

Amendement 47
Paragraph 15 b (new)
Zuzana Roithová (Czech Republic / EPP)
+

15b. Emphasises that the states where the greatest infringements of intellectual property rights occur, such as China, Pakistan, Russia and Brazil, were not invited to sign ACTA, and it is unlikely that those states will sign up to ACTA in the near future, and this raises important questions about the efficacy of the measures proposed by ACTA;

Comments:

Amendment 48 O[modifier]

Amendement 48
Paragraph 15 c (new)
Zuzana Roithová (Czech Republic / EPP)
O

15c. Is convinced that counterfeiting and piracy, when carried out with criminal intent and on a commercial scale, are significant phenomena in an information society and that it is necessary to develop a comprehensive EU strategy to tackle them. Such an EU strategy should not focus solely on combating the effects of counterfeiting and piracy, but should also focus on their causes; it must fully respect fundamental rights in Europe and be effective, acceptable and easily understood by society as a whole;

Comments: This amendment could have been more constructive by providing an appropriate definition of commercial scale, excluding acts carried on with no aim of profit.

Amendment 49 -[modifier]

Amendement 49
Paragraph 15 d (new)
Zuzana Roithová (Czech Republic / EPP)
-

15d. Recalls that, following a request from the European Parliament(1), the European Commission, in its Digital Agenda for Europe strategy, made a commitment to adopting a Code of EU online rights in 2012; considers that the Code of EU online rights should unambiguously define European citizens’ users’ rights and set out what they may or may not do in the digital environment, thereby establishing a basis for a comprehensive EU strategy to tackle counterfeiting and piracy;

Comments: (1)European Parliament resolution of 21 June 2007 on consumer confidence in the digital environment (2006/2048(INI)), points 25-28. Overlooks the fact that EU law must be revised to better protects rights online.

Amendment 50 O[modifier]

Amendement 50
Paragraph 15 e (new)
Zuzana Roithová (Czech Republic / EPP)
O

15e. In the light of the above considerations, does not recommend that consent be granted to ACTA in its current form.

Comments: AM seems to call for a new, revised ACTA. The EU copyright and patent policies must be revised beforehand to take into account new technologies and social practices.