Contracts for the Supply of Digital Content – The proposal of the commission for a directive on contracts for the supply of digital Content

Summary

ABSTRACT

In December 2015, the European Commission made a proposal for a Directive on contracts for the supply of digital content as a part of its digital agenda. The proposal breaks new ground in multiple ways, encompassing all kinds of different services, from music downloads to social networks. This chapter analyses the Commission's proposal both with respect to its broad scope of application and departure from regulating particular types of contract, as well its approach towards harmonising the standards for contractual liability, termination and rights to damages.

INTRODUCTION

The Digital Agenda, as one cornerstone of the Commission's Europe 2020 strategy, has steadily gained momentum and is starting to take increasingly concrete shape. While the Directorate-General CONNECT's attempts to reform European copyright law sparked intense controversy and have thus been postponed, the Directorate-General Justice submitted two new proposals on 9 December 2015 – one tackling the issue of consumer protection regarding the supply of digital content and the second concerning contracts for the online and other distance sales of goods. Though the second proposal entails changes of practical significance, such as prolonging the presumption for a lack of conformity with the contract from six months to two years (Article 8(3), recitals (22), (23)), the proposed ‘Directive on certain aspects concerning contracts for the supply of digital content’ (CSDC Directive) is of far greater importance due to its far-reaching application and its innovative regulatory approach. Drawing inspiration from the (ultimately unsuccessful) proposal for a Common European Sales Law (CESL) as well as from preparatory studies, the proposed regulatory framework has the potential to severely shake up the traditional typology of contracts in many Member States.

The following discussion seeks to describe and analyse the Commission’ s proposal, focusing on the remarkably broad scope of application (section 3) as well as its provisions for contractual liability (section 7), termination of contract (section 8) and rights to damages (section 9).

GENERAL APPROACH

Despite the proposed framework's character of an all-encompassing, binding set of fixed rules, the Commission has decided not make use of its authority to issue a regulation, but has instead proposed a fully-harmonising Directive to facilitate the implementation into national civil law (Article 4, recital (5) CSDC).