What Rules Should Apply to Smart Consumer Goods? Goods with Embedded Digital Content in the Borderland Between the Digital Content Directive and 'Normal' Contract Law

• Author: Karin Sein
• Pages: 96-110

2017

Karin Sein

96

2

What Rules Should Apply to

Smart Consumer Goods?

Goods with Embedded Digital Content in the Borderland

Between the Digital Content Directive and “Normal” Contract

Law

by Karin Sein*

© 2017 Karin Sein

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: Kar in Sein, What Rules Should Apply to Smar t Consumer Goods? Goods with Embedde d Digital

Content in the Borderland Bet ween the Digital Content Directi ve and “Normal” Contract Law, 8 (2017) JIPITEC 96 p ara 1.

Keywords: Smart consumer goods; goods with embedded digital content; Digital Content Directive; contract law

use split rules and subject the hardware of the prod-

uct to goods rules and embedded digital content to

digital content rules. One could even imagine sub-

jecting the whole good to the digital content rules –

an approach that would mean a major shift for the

existing sales and leasing law. The article discusses

the legal consequences of these different options,

describes their advantages and disadvantages, and

concludes that while there is no ideal solution to be

found, the split-approach would be preferable.

Abstract: The European Commission’s ap-

proach in the “Proposal of Digital Content Directive”

to regulate digital content contracts based on the

object, rather than the type of contract, has led to a

situation where a component of a product (the em-

bedded digital content) can end up being subject to a

contractual regime different from that applicable to

the rest of the “smart” product. Different solutions

have been proposed to solve this situation: firstly, one

could apply goods rules to the whole product, includ-

ing embedded digital content; alternatively, one could

A. Introduction

1

At the end of 2015, the European Commission

published a proposal for the so-called Digital

Content Directive (DCD),1 aiming to harmonise

certain legal aspects of consumer contracts for

the supply of digital content. Intensive academic

discussion has already taken place regarding the

standards of conformity of the digital content, as

well as concerning the consumer’s remedies in case

* Professor of Law, University of Tartu, Estonia.

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 of 9.12.2015.

a defective digital content has been delivered to

him.

2

There has been less discussion about how to

deal with the so-called smart products, or products

embedded with digital content, such as fridges that

order milk when running low, smart TVs, cars with

built-in software, or coffee machines searching the

web for the newest coffee recipes. These goods are

2 Spindler, ERCL 2016, 183, 204-217; Faber, Bereitstellungspicht,

Mangelbegriff und Beweislast im DIRL-E, and Koch,

Rechtsbehelfe des Verbrauchers bei Verträgen über

digitale Inhalte, in: Wendehorst/Zöchling-Jud (Hg), Ein neues

Vertragsrecht für den digitalen Binnenmarkt? Zu den

Richtlinienvorschlägen der Europäischen Kommission vom

Dezember 2015, Manz 2016, 89-131 and 131-159; Zoll, EuCML

2016, 250-253; Schmidt-Kessel, Erler, Grimm, Kramme, GPR

2016, 54-70; Metzger, JIPITEC 2017, 2-8.