DIGITALEUROPE position on embedded digital content and the Digital Contracts Directives

DIGITALEUROPE believes that the Tangible Goods Directive (which, jointly with the Digital Content Directive, are often referred to as the ‘Digital Contracts Directives’ package) should apply both to goods and digital content embedded in goods, i.e. digital content whose absence or unavailability would render the good inoperable or would prevent the good from performing its main functions. Examples of such digital content include the firmware which enables a speaker’s volume controls and the operating system of a smart TV. Here are the main arguments underpinning our view:

• The Sales and Guarantees Directive currently applies both to goods and digital content embedded in them. It is a regime that works well and ensures legal certainty – we see no reason why goods and embedded content should fall under separate regimes.
• If goods and digital content embedded in them were to fall under separate regimes (Tangible Goods Directive and Digital Content Directive respectively), traders (a) would be burdened with deciding whether a fault in a particular good is due to a hardware or content malfunction – a decision that requires technical expertise; and (b) might decide to turn first to the content provider to seek a remedy. DIGITALEUROPE believes that those two elements would result in undue delays and an unsatisfactory level of after sales service for the consumer. The Tangible Goods Directive should apply to goods in their entirety and the manufacturers of goods should be the ones to identify where the fault lies and how to remedy it.