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
SUMMARY

The European Commission’s approach 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 embedded digital content) can end up being subject to a contractual regime different from that applicable to the rest of the "smart" product. Different solutions... (see full summary)

 
FREE EXCERPT
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.

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