2 | 2021 Volume 12 (2021) Issue 2 ISSN 2190-3387
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2 | 2021 Volume 12 (2021) Issue 2 ISSN 2190-3387 Editorial by Karin Sein and Martin Ebers Articles Digital Content Directive And Rules For Contracts On Continuous Supply by Hugh Beale Digital Content Directive And Copyright-related Aspects by Gerald Spindler Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Goods with Digital Elements and the Seller’s Updating Obligation by Piia Kalamees Consumer’s Remedies For Defective Goods With Digital Elements by Alberto De Franceschi The Digitalisation Of Cars And The New Digital Consumer Contract Law by Peter Rott Interplay Of Digital Content Directive, European Electronic Communications Code And Audiovisual Media Directive In Communications Sector by Karin Sein Internet Of Bodies: Digital Content Directive, And Beyond by Cristina Amato Smart Contracting And The New Digital Directives: Some Initial Thoughts by Andre Janssen Liability For Artificial Intelligence And EU Consumer Law by Martin Ebers Reports Digital Consumer Contract Law And New Technologies - Implementation Of The Digital Content Directive In Austria by Brigitta Zöchling-Jud The (proposed) Transposition Of The Digital Content Directive In The Netherlands by Marco Loos Implementation Of The Digital Content Directive In Poland: A Fast Ride On A Tandem Bike Against The Traffic by Monika Namysłowska, Agnieszka Jabłonowska, Filip Wiaderek Transposition Of The Digital Content Directive (EU) 2019/770 Into Estonian Legal System by Irene Kull EU Digital Content Directive And Evolution Of Lithuanian Contract Law by Laurynas Didžiulis Editors: Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Miquel Peguera www.jipitec.eu Séverine Dusollier Chris Reed Karin Sein Table Of Contents Editorial by Karin Sein and Martin Ebers 94 Journal of Intellectual Property, Information Technology and Electronic Commerce Law Articles Volume 12 Issue 2 April 2021 Digital Content Directive And Rules For Contracts On Continuous Supply www.jipitec.eu by Hugh Beale 96 [email protected] A joint publication of: Prof. Dr. Thomas Dreier, M. C. J. (NYU) Digital Content Directive And Copyright-related Aspects KIT - Karlsruher Institut für Technologie, by Gerald Spindler 111 Zentrum für Angewandte Rechtswissenschaft (ZAR), Goods With Digital Elements And The Seller’s Updating Obligation Vincenz-Prießnitz-Str. 3, by Piia Kalamees 131 76131 Karlsruhe Germany Prof. Dr. Axel Metzger, LL. M. (Harvard) Humboldt-Universität zu Consumer’s Remedies For Defective Goods With Digital Elements Berlin, Unter den Linden 6, by Alberto De Franceschi 143 10099 Berlin Prof. Dr. Gerald Spindler The Digitalisation Of Cars And The New Digital Consumer Contract Law Dipl.-Ökonom, Georg-August- by Peter Rott 156 Universität Göttingen, Platz der Göttinger Sieben 6, 37073 Göttingen Interplay Of Digital Content Directive, European Electronic Communications Code And Audiovisual Media Directive In Communications Sector Karlsruhe Institute of Technology, by Karin Sein 169 Humboldt-Universität zu Berlin and Georg-August-Universität Internet of Bodies: Digital Content Directive, And Beyond Göttingen are corporations under by Cristina Amato 181 public law, and represented by their respective presidents. Editors: Smart Contracting And The New Digital Directives: Some Initial Thoughts? Thomas Dreier by Andre Janssen 196 Axel Metzger Gerald Spindler Liability For Artificial Intelligence And EU Consumer Law Lucie Guibault by Martin Ebers 204 Miquel Peguera Séverine Dusollier Chris Reed Karin Sein Board of Correspondents: Reports Graeme Dinwoodie Christophe Geiger Digital Consumer Contract Law And New Technologies - Implementation of Ejan Mackaay The Digital Content Directive In Austria Rita Matulionyte by Brigitta Zöchling-Jud 221 Giovanni M. Riccio Cyrill P. Rigamonti Olav Torvund The (Proposed) Transposition Of The Digital Content Directive In The Mikko Välimäki Rolf H. Weber Netherlands? Andreas Wiebe by Marco Loos 229 Raquel Xalabarder Editor-in-charge for this issue: Implementation Of The Digital Content Directive In Poland: A Fast Ride On A Karin Sein Tandem Bike Against The Traffic Technical Editor: by Monika Namysłowska, Agnieszka Jabłonowska, Filip Wiaderek 241 Lydia Förster ISSN 2190-3387 Transposition Of The Digital Content Directive (EU) 2019/770 Into Estonian Legal System Funded by by Irene Kull 249 EU Digital Content Directive And Evolution Of Lithuanian Contract Law by Laurynas Didžiulis 260 Editorial Editorial by Karin Sein and Martin Ebers © 2021 Karin Sein and Martin Ebers Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Karin Sein and Martin Ebers, Editorial, 12 (2021) JIPITEC 94 para 1. 1 This special issue continues the academic debate rightsholders and refers to the French model of on the topical issues of the new Directives on action directe as a possible solution. Digital Content and Services and Consumer Sales and, more broadly, on new technologies related 3 The issue then turns to the new digitalized Sale to consumer contracts. The contributions of this of Goods Directive, starting with the analysis of volume are based on the presentations held at the the seller’s updating obligation in case of smart virtual conference “Digital Consumer Contract Law consumer goods by Piia Kalamees. She emphasizes and New Technologies” on the 26th-27th of November that this obligation can be burdensome for traders 2020. The conference – originally meant to take as they usually are not in a position to provide the place in Tallinn but postponed and moved online updates themselves; yet they are liable vis-à-vis due to COVID-19 restrictions – was part of the consumers if the updates are missing or are leading research project PRG124 “Protection of consumer to a lack of conformity of the good. To balance the rights in the Digital Single Market – contractual seller’s position, she suggests designing the national aspects”, funded by the Estonian Research Council. rules on the seller’s right of redress in a mandatory The aim of the conference was to look into the manner, e.g. by limiting the possibility to exclude core questions of the new consumer contract law the right of redress in standard terms. Alberto De directives, their interrelationship with other legal Franceschi also deals with the sale of consumer goods areas such as copyright or telecommunications with digital elements and explores the consumer’s law, their implications for consumers and industry remedies for lack of conformity, pointing out as well as their ongoing transposition in Member that consumers should not be allowed to by-pass States. Additionally, it provided a vivid discussion the directive’s system of remedies by using other of certain new technologies and business models remedies provided by national law. Moreover, (AI, blockchain, internet of bodies, Legal Tech) and he raises a fundamental question of whether whether the new rules for consumer contracts are the actual consumer law is fit to tackle planned fit to deal with them. (digital) obsolescence and ensure longer durability of consumer goods. Peter Rott, in turn, asks about the 2 Our special issue starts with Hugh Beale’s impact of the new consumer contract law directives comprehensive overview of the Digital Content on the smart car industry. He develops the argument Directive and, more specifically, assessment of its that although the allocation of liability for inter- rules on long-term contracts. He also reminds us connected digital services with the seller of the car of the utmost importance of public enforcement would seem to strengthen the consumer’s position, as consumers will usually have little incentive to different rules for hardware and digital content and exercise their rights under the directive due to services can easily complicate the enforcement of their low value. Gerald Spindler then explores the remedies. Karin Sein investigates the complicated interrelationship of the Digital Content Directive interplay of the Digital Content Directive, the new with copyright law and scrutinizes the triangle European Telecommunications Code and Audio- between copyright holders, traders and consumers Visual Media Directive, especially in case of bundle by concentrating especially on the copyright contracts, and points out certain inconsistencies. restrictions in EULAs and whether they can be considered as a lack of conformity of digital content 4 At the time of the conference Member States were under the objective conformity test of the directive. in the process of drafting their transposition rules of He concludes, however, that the directive does not the new directives. As the Digital Content Directive solve the problems in the triangle as consumers leaves contract typology to the competence of are not able to enforce their rights against the Member States, it felt important to discuss how 32 94 2021 Karin Sein and Martin Ebers jurisdictions with a civil code tradition deal with the In the past two years, the EU also amended – as part implementation of its overarching contract law rules of the “New Deal for Consumers” – the Consumer into national law. The country reports by Brigitta Rights Directive (CRD) 2011/83 and the Unfair Zöchling-Jud (Austria), Marco Loos (Netherlands), Commercial Practices Directive (UCPD) 2005/29 – Monika Namysłowska, Agnieszka Jabłonowska and