Remedies and Conformity in Contracts for Digital Content: A CESL Perspective, Slides of Civil Law

Download Remedies and Conformity in Contracts for Digital Content: A CESL Perspective and more Slides Civil Law in PDF only on Docsity! Remedies for buyers in case of contracts for the supply of digital content Docsity.com Approach taken in CESL • Application of sales law to digital content • Application also to ‘gratuitous’ digital content – Payment through personal data or by accepting advertising – Restricted expectations (Art. 100(g) CESL) • In particular if also paid version available – Possibility for trader to apply same legal regime to different business models Docsity.com Restriction of legitimate expectations • Statements trader/producer shape expectations – Need not be truthful • Should not unjustly limit legitimate expectation based on other experiences and interests – Sales demonstration, packaging and labeling – Previous experience with similar tangible goods/digital content – More abstract interests • Public order, protection of fundamental rights • State of the market and technology • Nature and characteristics of comparable goods and digital content • Public policy objectives of intellectual property law • Art. 99 (3) CESL does not suffice Docsity.com Conformity and long-term contracts • Art. 105 (4) CESL – In case of updates: conformity throughout contract period – Suffices for updated online subscriptions • Databases, e-papers and e-magazines, • Satellite navigations systems • Antivirus-programs • Insufficient for access problems that do not appear at delivery – Subscription to online game that can no longer be accessed Docsity.com Copying of digital content • Entitlement to make back-up copy (needed for normal use) – So far limited to computer programs only • Entitlement to make private copy – If for non-commercial use and fair compensation – Limitation of number of copies allowed • If specifically drawn to consumer’s attention – No private copy right during cooling-off period Docsity.com Consequences of termination • Restitution of performances (Art. 172 CESL) • For digital content: monetary value of performance (Art. 173(1) CESL) = amount saved by making use of digital content (para.(4)) – Whether or not delivered on tangible medium • Also if easily returnable, e.g. sealed CD or protected e-book • Also if other means to prevent further use Docsity.com Limitation of remedies for ‘gratuitous’ digital content (Art. 107 CESL) • Only remedy: damages – And only for loss or damage caused by non-conformity to buyer’s property, including hardware, software and data – No right to have provided personal data removed – No loss of gain • Exclusion of price reduction logical • Exclusion of other remedies not – Disparity in treatment between digital content provided ‘for free’ and for a price of € 0,50 • Discrepancy within CESL – Art. 173 (6) CESL: restitution excluded in case of termination of ‘gratuitous’ digital content contract Docsity.com Transfer of ownership? • Typical for ordinary sales contracts • Not typical for digital content contracts – Transfer of ownership of tangible medium – No transfer of ownership of IP-rights • Text in Art. 91 (a) and (b) multi-interpretable – Delivery of digital content and transfer of ownership of tangible medium – Delivery of digital content and transfer of ownership thereof Docsity.com