An Innovative Legal Approach to Regulating Digital Content Contracts in the EU

• Author: Joshua M. Warburton
• Pages: 246-255

2016

Joshua M Warburton

246

3

An Innovative Legal Approach to Regulating

Digital Content Contracts in the EU

by Joshua M Warburton*

© 2016 Joshua M Warburton

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Joshua M Warbur ton, An Innovative Legal Approach to Regulating Digi tal Content Contracts in the

EU, 7 (2016) JIPITEC 246 para 1.

Keywords: Optional Instrument; Digital Content; Harmonisation; E-Commerce; Mutual Learning; Jurisdictional

Competition

the functionality of mutual learning legislative ex-

ercises can lead to the conclusion that allowing ex-

perimentation, whilst establishing a separate unified

optional framework, may well be the most practical

way to continue to develop more efficient contractual

rules and obligations, that may eventually be prolif-

erated throughout transnational markets. Separat-

ing the legislative efforts between national law and

an optional law that governs cross-border contracts,

overseen by a centralized body attempting to collate

the most beneficial aspects of digital content legis-

lation across the breadth of the EU, would be a more

progressive system of digital content contract regu-

lation.

Abstract: Unifying laws between States to bet-

ter facilitate cross-border transactions is not a new

concept. Within the EU, such unification has generally

been achieved by harmonising Directives and Regula-

tions. However, legislative techniques to govern dig-

ital content transactions are still in their infancy; it

is likely that any harmonising instrument would be

based upon pre-existing legislation that could be re-

fined to better serve its purpose. States themselves

would likely attempt to formulate innovative legis-

lative proposals to give contracts formulated under

their jurisdiction a competitive advantage. But, once

harmonization occurs, attempts to innovate in con-

tract law for individual gain would cease. Analysing

A. Introduction

1

The expansion of cross-border trade of digital content

is an unequivocal imperative for the European

Commission. However, bringing uniformity across

Member States’ legislative outputs is no simple task.

In a market with constantly evolving technology, it

is difcult to legislate adequately without constant

adaptation and innovation in the legal elds. As can

be demonstrated by investigating mutual learning

methods, the “knowledge problem” lends credence

to the idea that the best form of regulation is yet

to be discovered, and, therefore, transnational

jurisdictional competition should be encouraged

in order to discern the more favorable legislative

techniques and policies to cover digital content

transactions. The unfortunate ramication of this

is that, whilst this development is occurring, there

would be little in the form of legislation to encourage

cross-border sales. The Draft Digital Content

Directive1 could full some of the need for legislation,

but it is too narrow and restrictive. In this paper it

is suggested that a reformulation of the currently

retracted

2

Common European Sales Law (CESL)

3

as

a digital optional instrument would serve to allow

both legal development and mutual learning, whilst

creating a parallel system that allows uniformity in

cross-border digital transactions.

1 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(nal).

2 European Commission ‘Commission Work Programme 2015

– A New Start’ (Communication) COM(2014) 910 nal Annex

2, item 60.

3 European Commission, ‘Proposal for a regulation of the

European Parliament and of the Council on a Common

European Sales Law (CESL)’, COM (2011) 635 nal.