In the European Union intellectual property rights are a highly contentious issue. Since the late 1980s almost all Commission proposals to regulate various aspects of intellectual property rights have been met with resistance from NGOs and other interests groups. Two out of four proposed directives to regulate the patent system have been rejected by the European Parliament (in average only three percent of the proposed directives are rejected) and most recently the public consultation on the review of the EU copyright rules received a record number of more than 11,000 submissions – a number that no other EU consultation in any policy field has reached so far. One issue that continuously comes up in these conflicts is the question whether or not and/or where the regulation of intellectual property claims should differentiate between individual and commercial potentially infringing activities.

Ever since the term was introduced in Art. 61 of the TRIPS Agreement IP maximalists are trying to get rid of it, because the see it as an unnecessary limitation in fighting against counterfeiting and piracy. Groups critical of the current scope of IP rights on the other hand demand a more precise definition of commercial scale that explicitly excludes individual acts of unauthorized use of IP protected works without the intent of financial profit. Both sides interpret the definition provided in the EU directive on the enforcement of intellectual property rights (2004/48/EC, IPRED1) – acts carried out for direct or indirect economic or commercial advantage – as a half-baked compromise. Delegated to the directive’s recitals outside the core legal text and using an equally vague terminology it adds little to legal clarity and leaves much to the interpretation of courts and national law-makers.

Thus, the conflict which started with debates about the implementation of TRIPS Article 61 and gained prominence in the in the political conflict about IPRED1, has resurfaced in the conflict about the Anti Counterfeiting Trade Agreement (ACTA) and continues to be divisive issue in the current debate about the future of copyright in Europe. A solution for the conflict will have to account for the widespread individual practices of sharing digital content, not by criminalizing user behavior but more likely through some form of blanket compensation. IP enforcement could then focus on those areas where a strong social consensus exists: That profits from the distribution of digital goods should always benefit the creators of these goods.

• published as: Haunss, Sebastian (2014), Roundtable: the enforcement of IP rights in Europe in the context of the EC’s new action plan and strategy – The notion of “commercial scale”, E-Commerce Law & Policy 16(8): 14.