Copyright aspects of the supply of digital content or services

Bibliogr. s. 56-57

Contracts for the supply of digital content or services feature two layers - the contract law layer and the copyright law layer. Digital products typically embody copyrighted works or provide access to such works. The copyright law layer regulates the issues of enabling the user to use a particular digital good, the real purpose of concluding such contracts. The rules for the distribution of digital content are partially regulated by Directive 2019/770, which, however, is without prejudice to EU and national laws on copyright and related rights. The most important copyright aspects of the supply of digital products concern the exhaustion doctrine regarding digital products, the authorization of the use of digital goods in the form of EULA licenses, and the rules of liability of the supplier in connection with third-party rights, in particular intellectual property rights, introduced by Directive 2019/770. Generally, the exhaustion doctrine does not apply to digital goods distributed virtually, except for computer software. EULA licenses and terms of use for digital products often contain provisions that, while safeguarding the interests of copyright holders, prevent the freedom of use of digital goods. Directive 2019/770 introduced the objective requirements for conformity, which can soften the restrictive rules for the use of digital goods under copyright law. However it is the supplier, who is responsible for violation of the objective requirements, while he is often not the copyright holder of the digital products offered.