Activities of Jean-Marie CAVADA related to 2015/0287(COD)
Legal basis opinions (0)
Amendments (35)
Amendment 86 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protection for consumers and all parties linked to the contract, including rights-holders and online service providers, is necessary.
Amendment 137 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level. It should include therefore rules on conformity of the digital content, remedies available to consumers in cases of lack of conformity of digital content with the contract and certain modalities for the exercise of those remedies. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, as well as certakes into account the fact that certain long-term contracts make sense because they give consumers more favourable conditions than short-term contracts. It should therefore be ensured that such contracts contain aspects concerning the modification of the digital contenific conditions so as not to distort the supplier's initial intention of providing advantages to consumers who opted for this type of contract.
Amendment 175 #
Proposal for a directive
Recital 13
Recital 13
(13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content is often supplied not in exchange for a price but against counter-performance other than money, i.e. by giving access to personal data or other data. Those specific business models apply in different forms in a considerable part of the market and can provide value to consumers by reducing costs and increasing innovation and choice of digital content and services. Introducing a differentiation depending on the nature of the counter-performance would discriminate between different business models; it would provide an unjustified incentive for businesses to move towards offering digital content against data. A level playing field should be ensuredOn the other hand, providing the same rights to consumers when they supply personal data by way of counterperformance other than money might incentivise consumers to opt for the supply of digital content in exchange for the supply of personal data rather than the payment of money. There should therefore be a balance between the rights and remedies provided for. In addition, defects of the performance features of the digital content supplied against counter- performance other than money may have an impact on the economic interests of consumers. Therefore, the applicability of the rules of this Directive should as far as possible not depend on whether a price is paid for the specific digital content in question.
Amendment 180 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Consideration should be given to the fact that some business models are based partly or wholly on the processing and analysis of data which may offer value to consumers by reducing costs and increasing innovation and product diversity in the digital sector.
Amendment 183 #
Proposal for a directive
Recital 13 b (new)
Recital 13 b (new)
(13b) Regulation (EU) 2016/679 on the protection of personal data, however, affords the consumer the right to object to the use or assignment of personal data concerning him so that he can protect himself against various forms of commercial prospectíon on the part of professionals using his personal data without his formal authorisation.
Amendment 196 #
Proposal for a directive
Recital 14
Recital 14
(14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, this Directive should apply only to contracts where the supplier requests and the consumer actively provides data, such as name and e-mail address or photos, directly or indirectly to the supplier for example through individual registration or on the basis of a contract which allows access to consumers' photos. This Directive should not apply to situations where the supplier collects data necessary for the digital content to function in conformity with the contract, for example geographical location where necessary for a mobile application to function properly, or for the sole purpose of meeting legal requirements, for instance where the registration of the consumer is required for security and identification purposes by applicable laws. This Directive should also not apply to situations where the supplier collects information, including personal data, such as the IP address, or other automatically generated information such as information collected and transmitted by a cookie, without the consumer actively supplying it, even if the consumer accepts the cookie. It should also not apply to situations where the consumer is exposed to advertisements exclusively in order to gain access to digital content. In the cases listed above, the supplier may not in any circumstances use the data communicated to him for any other commercial purpose on behalf of a third party, in accordance with Regulation (EU) 2016/679.
Amendment 208 #
Proposal for a directive
Recital 17
Recital 17
(17) Digital content is highly relevant in the context of the Internet of Things. However it is opportune to address specific issues of liability related to the Internet of Things, including the liability for data and machine-to-machine contracts, in a separate way. The information generated by these flows should be covered by data protection standards. With a view to the protection of natural persons, due account should therefore be taken of digital developments. It is essential, therefore, that this Directive should address the security concerns linked to exchanges of information and data provided by the Internet of Things.
Amendment 220 #
Proposal for a directive
Recital 21
Recital 21
(21) This Directive should not deal with copyright and other intellectual property related aspects of the supply of digital contentaspects of the supply of digital content covered by copyright and other intellectual property rights. Therefore it should be without prejudice to any rights and obligations according to copyright law and other intellectual property laws.
Amendment 226 #
Proposal for a directive
Recital 23
Recital 23
(23) There are various ways for digital content to reach consumers. It is opportune to set simple and clear rules as to the modalities and the time for performing the supplier's main contractual obligation to supply digital content to the consumer. Considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content, it should be sufficient for the supplier to supply the digital content to this third party. With regard to the time of supply, in line with market practices and technical possibilities, the digital content should be supplied immediately, unless the parties decide to agree otherwise in order to cater for other supply modelsable to adapt to a technical problem encountered by a third party (a content resale platform, for example) or to other supply models. If the supplier acts as a distributor for a creator of digital content, it must be clear for the consumer that he is entitled only to reimbursement or a replacement, but on no account to repair, a process which can be dealt with only by the creator.
Amendment 247 #
Proposal for a directive
Recital 28
Recital 28
(28) When applying the rules of this Directive, suppliers should make use of standards, open technical specifications, good practices and codes of conduct, including in relation to the commonly used data format for retrieving the content generated by the user or any other content provided by the consumer, whether established at the international level, the European level or at the level of a specific industry sector. In this context, the Commission may consider the promotion ofcalls for the development of international and European standards and the drawing up of a code of conduct by trade associations and other representative organisations that could support the uniform implementation of the Directive.
Amendment 254 #
Proposal for a directive
Recital 31
Recital 31
(31) Conformity should cover material as well as legal defects. Third party rights might effectively bar the consumer from enjoying the digital content or some of its features in accordance with the contract if those third party rights are infringed, and if when the third party rightfully compels the supplier to stop infringing those rights and to discontinue offering the digital content in question. Legal defects are particularly important for digital content, which, by its nature, is subject to intellectual property rights. Therefore the content supplier should be obliged to ensure that the digital content is free from anyguarantee that third-party rights have been respected. If the rights of a third party, for example a copyright claim related to the digital content, which precludes the consumer from enjoying the digital content in accordance with have been violated, that party may hold the supplier liable and call upon it to cease supplying the content in question. In that event, the supplier will be legally liable vis-à-vis the contractsumer.
Amendment 269 #
Proposal for a directive
Recital 34
Recital 34
(34) The supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digital content. Moreover, given that digital content may be supplied over a period of time, it is justified that the supplier should be liable for anythe supplier may be found liable if a lack of conformity which occurs during that period, if the consumer proves that no change has been made to the contract, in particular as concerns the digital environment and/or technical specifications.
Amendment 295 #
Proposal for a directive
Recital 37
Recital 37
(37) As a second step, if no way has been found to bring the digital content in line with the contract, and if the consumer shows that he has given the supplier all the necessary elements for making the installation of the content compatible with the digital environment or technical specificities, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non- conformity impairs the main performance features of the digital content. WUnder those conditions, where the consumer terminates the contract, the supplier shouldall reimburse the price paid by the consumer or, where the digital content is supplied not in exchange for a price but against access to data provided by the consumer, the supplier shouldall refrain from using it, from transferring that data to third parties or allowing third parties to access it after terminatis soon ofas the contract is terminated. Fulfilling the obligation to refrain from using data should mean in the case whenmeans, if the counter- performance consists of personal data, that the supplier shouldabsolutely must take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer can not longer be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under Directive 95/46/EC the supplier should not be obliged to undertake any further steps in relation to data which the supplier has lawfully provided to third parties in the course of the duration of the contract for the supply of the digital content.
Amendment 308 #
(38) Upon termination the supplier should also refrain from usingmay not use the content generated by the consumer. However, in those cases where more than one consumer generated particular content, the supplier is entitled to continue to use the content generated by the consumer where those other consumers make use of it.
Amendment 313 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier should allow the consumer to retrieve allconsumer must be able to retrieve the monetisable data uploaded by the consumsupplier, produced by the consumer with the use of the digital content or generated through the consumer's use of the digital content. This obligation should extend tocovers the data which the supplier is obliged to retain underrequired effectively to retain in relation to the contract for the supply of the digital content as well as to data which the supplier has effectively retained in relation to the contract. Steps should be taken, however, to ensure that this process does not infringe the supplier's intellectual property rights, where relevant, and does not impose too great a technical burden on him.
Amendment 329 #
Proposal for a directive
Recital 43
Recital 43
(43) Due to its nature the digital content is not subject to wear and tear while being used and it is often supplied over a period of time rather than as a one-off supply. It is, therefore, justified for digital content supplied over a period of time as part of long-term contracts not to provide a period during which the supplier should be held liable for any lack of conformity which exists at the time of the supply of the digital content. Consequently Member States should refrain from maintaining or introducing such a period. However for digital content supplied as a one-off supply, it should be justified to introduce a limitation period of two years as from the time of supply of the digital content. Member States should remain free to rely on national prescription rules in order to ensure legal certainty in relation to claims based on the lack of conformity of digital content.
Amendment 432 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperacompatibility' means the ability of digital content to perform all its functionalities in interaction with a concrete digital environment;
Amendment 451 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter- performance other than money in the form of personal data or any other datasupplied voluntarily.
Amendment 499 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
6. Where a contract includes elementobligations in addition to the supply of digital content, this Directive shall only apply to the obligations and remedierights and obligations of the parties as supplier and consumer of the digital content.
Amendment 540 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. The supplier of digital content shall only be held accountable for delays to the provision of content if it is shown that those delays were not caused by problems with the distribution platform or internet access.
Amendment 557 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) be of the quantity, quality, duration and version and shall possess, functionality, interopera and compatibility and other performance features such as accessibility, continuity and security, as required by the contract including in any pre-contractual information which forms integral part of the contract;
Amendment 592 #
Proposal for a directive
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4a. If the contract concerns cultural content, and therefore works necessarily protected by copyright, the conformity of the contract implies that all copyright laws have been complied with.
Amendment 598 #
Proposal for a directive
Article 6 – paragraph 5
Article 6 – paragraph 5
5. In order to conform with the contract the digital content must also meet the requirements of Articles 7 and 8.
Amendment 613 #
It is therefore essential that the supplier and the consumer conclude a contract on the compatibility of the content with the consumer's digital environment.
Amendment 622 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. At the time the digital content is supplied to the consumer, the digital content shall be free of anyrespect all the rights of a third partyies, including those based on intellectual property, so that the digital content can be used in accordance with the contract.
Amendment 629 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Where the digital content is supplied over a period of time, the supplier shall, for the duration of that period, keep ensure that the digital content supplied to the consumer free of anyspects the rights of a third partyies, including thatose based on intellectual property, so that the digital content can be used in accordance with the contract.
Amendment 639 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The burden of proof with respect to the conformity with the contract at the time indicated in Article 10 shall be on the supplier within the first six months from the time when the digital content is supplied.
Amendment 676 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) where the contract provides that the digital content shallis to be supplied over a period of time, any lack of conformity which occurs during the duration ofat period. The burden of proof shall remain on the supplier throughout that period.
Amendment 694 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
In the case of a failure to supply the content, this regulation shall take into account the exceptional circumstances in which a contract may be required to apply, including those in which the order and delivery take place in another country and the supplier has difficulty in enforcing his rights with the service providers, especially if they are established in a Member State which the client has visited on an occasional and temporary basis. Under these circumstances it is necessary to ensure that the supplier is not penalised at once by immediate termination of the contract but to take the trouble to verify the situation in which the transaction took place.
Amendment 793 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier shall take all measures which could be expectedare necessary in order to refrain from the use of the counter-performance other than moneypersonal data which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer, with the exception of the content which has been generated jointly by the consumer and by others who continue to make use of the content;
Amendment 802 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used data format; these provisions shall apply without prejudice to the provisions protecting commercial and industrial confidentiality and intellectual property rights.
Amendment 803 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) upon request by the consumer, the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generatedhis or her personal data , provided the data in question have not been deleted or rendered anonymous, and all content provided by the consumer through the consumer's use of the digital content, where technically feasible, to the extent that datacontent has been retained by the supplier and is portable to other services. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used data format;
Amendment 863 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economicdigital damage to the digital environment of the consumer caused by a lack of conformity with the contract or a failure to supply the digital content. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 910 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the contract provides for the supply of the digital content for an indeterminate period or where the initial contract duration or any combination of renewal periods exceed 12 months, the consumer shall be entitled, this directive takes into account the fact that, where long- term contracts (those valid for more than 12 months) give consumers more favourable conditions than short-term contracts, in order to obtain them the consumer must respect the terms of that contract. If he decides to terminate the contract anbefore the end of the period of validity stime after the expiration of the first 12 months periodpulated in the contract, the penalties that are provided for in the contract and of which he was informed at the time of signature will apply automatically.
Amendment 984 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data. , active provision of personal data or indirect collection of data. The report shall also assess the impact of this Directive on consumer behaviour and on general practices of companies, in particular with regard to the scope of this Directive.