Cornelia Kutterer, senior legal advisor at BEUC, the European consumer organisation, has been explaining why they have launched a campaign focussing on the dangers of developments in intellectual property policy at EU level. She says that the blurring of the boundaries between commercial and non commercial intellectual property infringement by EU policy makers is a fundamental problem.

"Today, it appears that the Commission no longer distinguishes these two different types of infringement. But blurring these boundaries leads to excessive reactions that may have deep, irreversible and adverse effects on our society, technological development and the private sphere.

In a highly controversial and often hostile debate about the scope of IP protection, recent developments in the political debate tend to be excessive, disproportional, lop-sided and do not take into account the existence of many discussions on how to improve creativity, access to knowledge and the legal use of technology. Instead, the law of unintended consequences is being provoked. Some examples:

Criminalization of consumers
In a recent proposal adopted by the Commission in July 2005, the Commission aims at introducing and aligning national criminal law provisions against infringements of IPRs. Under the proposal, infringements of any intellectual property rights are treated as criminal offences if undertaken intentionally and on a commercial scale. Similarly, attempting, aiding and inciting such infringements are considered criminal acts.

The problem is that the definition of "commercial scale" is not set out, and does not explicitly require financial benefits, profit or a commercial motive for activities to be identified as taking place on a "commercial scale"..."

She goes on to talk about the EU data retention proposals and drm standards that routinely incorporate user tracking and concludes:

"These recent developments and initiatives show that the balance between the rights of the right holders and the rights of consumers is neither achieved nor maintained but instead ever more threatened. Consumers’ organizations have to be very vigilant in the near future. The European Commission has announced a review of a set of directives related to copyright, in particular the reform of copyright levies applied to equipment and media used for private copying and a review of copyright term, above all, term for sound recordings are included in the review. Consumers’ organizations will also need to look at the contractual side and pay high attention to abusive terms in services. An initiative report on consumer protection in the digital environment by the European Parliament could certainly help to address this issue.

A good sign came recently from The German Federal Supreme Court. It stated that "the necessary balance between the constitutionally protected rights of the right holders to exercise their rights and the constitutionally protected interest in competition, i.e. to be able to evolve freely outside that protected scope, would not be guaranteed anymore if the right holder could claim protection to an extent to which he is not entitled…" (BGH 2005). The court adds that this objective distinction between the scope of IP protection and the freedom of competition must also be balanced in regard to the means of enforcement. We believe that the statement is fundamental and should be reflected in all initiatives at hand."