1. ABSTRACT
SECOLA
Tartu, June 2016
A digital CESL II: A paradigm for contract law via the backdoor?
Christina Ramberg
Professor of Private Law, Stockholm University, Sweden
This session presents the proposed directive on sale of digital content. I give examples of products that provides digital content and their special features.
The overarching question is whether any special rules for digital content are needed. To my opinion, such rules are not necessary. The presentation covers the problems specific to digital contents and how the proposed directive partly suggests to solve them and partly refrains from addressing them.
My conclusion is that the special legal problems created by digital content are not solved by the provisions in the proposed directive, either because the proposal does not address them or because the provisions do not provide sufficient guidance for the individual case. I also discuss the general matters regarding the need for easily accessible legal rules and the danger of substituting one problem (uncertainty about the law) with another problem (classification and categorization to determine the scope of application).

2. Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, COM(2015) 634 final 2015/0287 (COD)

3. Examples of sale of digital contents
Streaming services of film, books and music
Cyber butler services
Games
Gambling
E-learning products
Networking products (Facebook, Linkedin)
Accounting/bookkeeping programs
News subscriptions
Storage of digital material (cloud services)
Healthcare services
Fitness services
Financial services
Subscription for contracts and other template documents

4. SCOPE OF APPLICATION
covers also non-electronically stored data
does, however, not cover embedded digital content
does not apply to personal (physical) services

5. Only lawyers are happy about definitions and scope of application problems

6. In sum, it is hard to determine which transactions the proposed directive covers. This will lead to uncertainty and confusion among lawyers giving advice to the digital content industry.
Confusion is a great hindrance to cross-border transactions.

7. Special features of digital content
Are they “special”?
Low distribution costs
Often high production costs for the first product and low production costs for the following products
The digital content is often provided as subscriptions
Payment by allowing the use of personal data
Detailed standard terms (take-it-or-leave-it)

8. Special legal problems relating to the sale of digital content
Vague contracts
Defects
Intellectual Property Rights
The user's rights
The contract term
Remedies for the supplier's breach
Restitution
The supplier's right to redress

9. Regulating vs. Contracting (self regulation)
It is not a question of
Regulating vs. Contracting (self regulation)
instead it is a question of
Regulating specifically vs. Regulating generally

10. There is no need for a specific regulation on the sale of digital content.
Instead of creating certainty, the proposal causes increased uncertainty about
how to define the scope of application,
the questions not addressed in the proposed directive, and
about ambiguous articles in the proposal.

11. The proposal does not cover the formation or validity of contracts
The proposal does not cover the formation or validity of contracts. The reason why this is not be micro-regulated is that the problems for concluding contracts on digital content are not different from other contracts.
The same argument is valid for the rules in the proposal for digital content.

12. If it ain't broken, don't fix it!
The Recitals state that consumers experience problems regarding quality and access to contents. I doubt that.
The Recitals state that consumers are uncertain about their contractual rights. A directive will not create greater certainty.
The law as it stands today does not create any significant barrier to the trade of digital content.
I do not share the EU Commission's view that a new directive would enable 120,000 more businesses to sell online and that the intra-EU exports would increase by 18 billion Euro and EU GDP increase by 4 billion Euro.

13. Legislation will never be able to catch up with the rapid development of new contract types.
This is why it is necessary to
- identify the general conflicts of interests and
- regulate these issues on a general level, applicable to all types of contracts.

14. RESTATMENT ON GENERAL CONTRACT LAW
EU should embark on a bolder project:
a softlaw
RESTATMENT ON GENERAL CONTRACT LAW