Today, increasingly more contracts deal with supplies of ‘digital content,’ aka (non-personal) ‘data’. Examples range from B2B transactions of ‘raw data’, over tech giants supplying software-as-a-service to SMEs, to streamed audio-visual content and downloadable e-books supplied to consumers in exchange for one-off or monthly fees. These contracts take variable shapes and often fit into multiple contract categories. In spite of their ever-growing importance, European law currently does not provide for a coherent set of legal rules that govern these kinds of transactions.
The present project takes stock of the rapidly evolving discussions in the field. Without focussing on sector-specific rules, it takes a broad approach and monitors the coherence of case law as well as new and future legislation with relation to data and digital content transactions. Building upon noteworthy initiatives like the establishment of the ALI-ELI Principles for a Data Economy, this project takes an intradisciplinary approach to target a number of vexed issues that have, to date, largely been ignored, but which are certain to give rise to practical concerns in the near future.
The project exists of two main parts. In relation to transactions in digital content (part I), first, pressing frictions between new and existing legislation with intellectual property law are disclosed and viable solutions are proposed (1). Second, a detailed analysis is made of the normative expectations that end-users of digital content may have of digital content (2).
Frictions between intellectual property and novel legislation on digital content (1) are manifold. Within this project, one subtopic deals with the issues referred to as “data portability” or “data access” rights, and notably with the issue of reclaiming or recovering IP-protected digital content, by analogy to the recovery right that owners of tangibles enjoy. The exercise of up-chain redress rights in cases of legal defects is another source of frictions that is studied.
A second branch of the research on contracts for the supply of digital content focusses on the normative expectations that end-users have when they acquire digital content or digital services (2). As research sub-hypotheses, it is tested whether lessons can be drawn from, inter alia, the Proposal for a Digital Markets Act, the ALI-ELI Principles, the portability rights in the GDPR and beyond, competition law, and harmonized and non-harmonized copyright and copyright contract law. In particular, it will be addressed whether these branches (can) contribute to ‘Typenbildung’for end-user digital content contracts.
A second main part of this project focusses on transfers of data. In this respect, newly proposed EU legislation like the 2022 proposal for a “Data Act” Regulation is scrutinized: what are the IP-related and contract-law-related implications of the “portability” right provisions that are proposed therein? Suggestions for improved law-making are put forward.