Law/9. Civil Law
Tkachenko O. V.
Yaroslav the Wise National Law University of Ukraine
Consumer Rights Protection in Digital Purchase of Software
Internet nowadays is one of the
fastest developing business spheres. Purchase of goods throughout the internet is
becoming more and more popular. According to the research, share of the
internet purchases in Europe reaches 50 percent, and in USA – 47 percent in
2013. Recognizing and acknowledging importance of electronic commerce, European
Parliament back in 2000 adopted corresponding Directive 2000/31/EC, also known
as “Directive on electronic commerce”. But the development of internet market
becomes more rapid.
One of the key spheres of the
electronic commerce is electronic sale of digital goods. Purchase of such goods
through the internet is more convenient for a consumer, because he uses
computer to buy goods meant for computers. And often consumer buys goods not
directly from developer, but uses big service-shops. Every year such services
as Steam and iTunes receive large profit solely from such sales. But in this
situation raises a range of specific circumstances, which are problematic to
regulate from legal standpoint.
Purchase of software actually is not
a purchase and sale contract, but transfer of intellectual property rights, in
practice – via license agreement. In Ukrainian legislation this matter is
regulated by chapter 75 of Civil Code of Ukraine. In Ukrainian legislation, as
in national legislation of other countries, it is stated that significant part of
issues, concerning volume of rights of user of software is decided by content
of license agreement with the end user. But often positions of license
agreements, which are written by the developers of software, are directed at
defending their rights, and are contradicting to rules of national legislation
on consumer rights protection, in particular provide denial of responsibility
for the quality of the software. Such problems occur because Ukrainian
legislation, as well as legislation of many other counties, such as Russia, is
in fact outdated, and was not developed for regulation relations in sphere of
electronic commerce. More so, there is a question, on even how to classify
electronic sale of goods in digital form. Directive 2011/83/EU of the European Parliament
and of the Council, for example, defines that such contracts should be
classified, for the purpose of this Directive, neither as sales contracts nor
as service contracts. This directive provides for a right of withdrawal for
consumer, unless he has consented to the beginning of the performance of the
contract during the withdrawal period and has acknowledged that he will
consequently lose the right to withdraw from the contract. And such agreement
is placed in majority of license agreements. In reality, even with special
regulation of this matter, a consumer is still at a disadvantage. If the
program or videogame he acquired does not live up to his expectation, consumer
doesn’t have an easy way to defend his rights. In my opinion, it is necessary to
develop and establish legal
institutions, that are able to keep the balance between the rights of a seller and a consumer of software.
There’s also a matter concerning
services that sells digital goods. There’s no specific legislation about their
activity, so majority of points, which are not covered by general rules of
private law, are decided by agreement. In reality this agreement is expressed
in separate contract or agreement between the user of service and company that
provides the service. Usually this is a contract, developed in advance, that user has to agree with “as is”, otherwise he
cannot use the service. Rules of these agreements differ. The consumer is
either making contracts to receive a license to use object of intellectual
property through the service, like in service iTunes, or acquires a license to
use object of intellectual property as a subscriber (user) of service, like in
service Steam. But both services, as other like them, states a wide denial of
responsibility for quality of both the
service itself and the digital goods bought through them. They also provide for
the right of the side, providing the service, to stop any services provided
with warning of a user, as well as without it. These agreements put a consumer
at a huge disadvantage, making him dependent on will of provider of the
service. From the point of law these disclaimers, while formally approved by a
consumer, violate his rights, contradict with the core point of consumers’
rights protection institution. According to legislation of European Union, such
disclaimers are not valid. If we follow rules of national legislation of
Ukraine, then contradiction of such disclaimer to law “On Protection of
Consumers' Rights”, will be countered by the principle of freedom of contract.
In this case it would be rational to establish strict restrictions on how much
consumers’ rights can be limited with this agreement.
The separate question in the matter
of electronic sale of goods in digital form is its international nature.
Because this kind of commerce does not need any moving of physical goods,
consumers often use services, which are based in other countries. Besides the
question about laws of which county should be used in this case, there’s a
problem of defending his rights for a regular consumer. For him to apply to the
court of in another part of the world is extremely problematic, because of
objective reasons, besides the difference in legislation. To solve this
problem, in my opinion, we should develop a mechanism for resolution of
litigations on electronic commerce on supranational level, potentially using
the capabilities of the Internet.
In conclusion it should be stated
that electronic commerce thought the Internet is an area that is constantly
changing. In turnover of digital goods its international nature is most clearly
expressed. So for regulating the electronic commerce we should use
international methods.
Bibliography:
1. Закон України «Про захист прав споживачів»/ Відомості
Верховної Ради України, 1991 р., N 30, ст. 379;
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services, in particular electronic commerce, in the Internal Market ('Directive
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