LIBE ACTA report amendments
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.
Sommaire
Amendments 1 – 10
Amendment 1 +
Amendement 1
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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 --
Amendement 2
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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 -
Amendement 3
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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: |
Amendment 4 O
Amendement 4
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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 O
Amendement 5
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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 O
Amendement 6
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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. |
Amendment 7 O
Amendement 7
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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. |
Amendment 8 O
Amendement 8
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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. |
Amendment 9 O
Amendement 10
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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: |
Amendment 10 O
Amendement 10
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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. |
Amendments 11 – 20
Amendment 11 O
Amendement 11
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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
Amendement 12
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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
Amendement 13
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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 O
Amendement 14
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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 O
Amendement 15
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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
Amendement 16
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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 O
Amendement 17
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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 O
Amendement 18
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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 O
Amendement 19
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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: "the Charter" is unclear. Translation issue? |
Amendment 20 WITHDRAWN
Amendement 20
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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: |
Amendments 21 – 30
Amendment 21 O
Amendement 21
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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: Order of business communications are beyond the scope. Unclear which party is addressed. |
Amendment 22 -
Amendement 22
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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: Am 22 mistakes a caveat for balance. The "delta" is negative: the provisions of this agreement are biased as such as they could only be implemented at the expense of fundamental rights values but not in their defense. ACTA options and flexibilities suggest implementation of an ACTA+, esp. as they are tied to international trade dialogue. The language above "require...be implemented" shows it is a loaded gun. Fundamental rights concerns raised also relate to ACTA implementers in third nations. |} Amendment 23 O
Amendment 24 O
Amendment 25 O
Amendment 26 O
Amendment 27 O
Amendment 28 O
Amendment 29 O
Amendment 30 O
Amendments 31 – 40Amendment 31 O
Amendment 32 O
Amendment 33 O
Amendment 34 O
Amendment 35 O
Amendment 36 O
Amendment 37 O
Amendment 38 O
Amendment 39 O
Amendment 40 O
Amendments 41 – 50Amendment 41 O
Amendment 42 O
Amendment 43 O
Amendment 44 O
Amendment 45 O
Amendment 46 O
Amendment 47 O
Amendment 48 O
Amendment 49 O
Amendment 50 O
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