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|Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — A Digital Single Market Strategy for Europe +||''"The Digital Single Market must be built on reliable, trustworthy, high-speed, affordable networks and services that safeguard consumers' fundamental rights to privacy and personal data protection while also encouraging innovation. This requires a strong, competitive and dynamic telecoms sector to carry out the necessary investments, to exploit innovations such as Cloud computing, Big Data tools or the Internet of Things. The market power of some online platforms potentially raises concerns, particularly in relation to the most powerful platforms whose importance for other market participants is becoming increasingly critical"'' (p. 9). +|
|Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — Communication on future networks and the internet +||Page 7: ''"EC competition rules (Articles 81 and 82 EC) will play a crucial role in preventing and removing anti-competitive conduct. These provisions allow tackling both abusive conduct of dominant network operators as well as co-ordinated conduct aimed at excluding other services or alternative operators from the market"''. +, Page 8: ''"Convergence is also leading to many different devices and services having to talk to one another. For instance, the proliferation of nomadic services requires networks, handsets, content protection and security applications that are interoperable. Most of the time, these issues are resolved by market mechanisms: the win-win of open interfaces and standards is that the market can grow for all. However, and this is particularly relevant in the presence of network externalities, dominant players may try to use proprietary standards to lock consumers into their products or to extract very high royalties from market players, ultimately slowing innovation and foreclosing market entry by new players"''. +|
|Communication from the Commission — Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings +||''48. ‘Tying’ usually refers to situations where customers that purchase one product (the tying product) are required also to purchase another product from the dominant undertaking (the tied product). Tying can take place on a technical or contractual basis.'' +, ''49. Tying and bundling are common practices intended to provide customers with better products or offerings in more cost effective ways. However, an undertaking which is dominant in one product market (or more) of a tie or bundle (referred to as the tying market) can harm consumers through tying or bundling by foreclosing the market for the other products that are part of the tie or bundle (referred to as the tied market) and, indirectly, the tying market.'' +, ''62. Provided that the conditions set out in Section III D are fulfilled, the Commission will look into claims by dominant undertakings that their tying and bundling practices may lead to savings in production or distribution that would benefit customers. The Commission may also consider whether such practices reduce transaction costs for custo- mers, who would otherwise be forced to buy the compo- nents separately, and enable substantial savings on packa- ging and distribution costs for suppliers. It may also examine whether combining two independent products into a new, single product might enhance the ability to bring such a product to the market to the benefit of consu- mers. The Commission may also consider whether tying and bundling practices allow the supplier to pass on effi- ciencies arising from its production or purchase of large quantities of the tied product.'' +|
|Digital Consumers and The Law. Towards a Cohesive European Framework +||When – because of TPMs or incompatibility of formats and standards – the consumer can't access digital content or transfer it to another device and make use of it according to its ordinary or specifically agreed purpose, it constitutes a lack of conformity, unless, before the conclusion of the contract, the consumer wasn't ''“properly informed of such restrictions, and such restrictions cannot be said to constitute an unfair contract term, an unfair commercial practice, or an unlawful restriction of fundamental rights such as the right to information or the right to privacy”'' (HELBERGER p. 94); <u>therefore, we also have to examine the Consumer Information Directive about the information requirements, the Directive on Unfair Terms in Consumer Contracts about unfair contract terms, the UCP Directive about unfair commercial practices, the Data Protection Directive about privacy, etc.</u>; in Germany, when digital content is protected by TPMs, it must be labeled as such, and, when it isn't, it is a case of non-conformity. +, '''''DIRECTIVE 2011/83/EU on consumer rights (Consumer Rights Directive).''''' Recital 19: ''“Digital content means data which are produced and supplied in digital form, such as computer programs, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or streaming, from a tangible medium or through any other means. Contracts for the supply of digital content should fall within the scope of this Directive. If digital content is supplied on a tangible medium, such as a CD or a DVD, it should be considered as goods within the meaning of this Directive. Similarly to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, contracts for digital content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales contracts nor as service contracts. For such contracts, the consumer should have a right of withdrawal 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. In addition to the general information requirements, the trader should inform the consumer about the functionality and the relevant interoperability of digital content. The notion of functionality should refer to the ways in which digital content can be used, for instance for the tracking of consumer behaviour; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding. The notion of relevant interoperability is meant to describe the information regarding the standard hardware and software environment with which the digital content is compatible, for instance the operating system, the necessary version and certain hardware features. The Commission should examine the need for further harmonisation of provisions in respect of digital content and submit, if necessary, a legislative proposal for addressing this matter.”'' Art. 5(1): ''“Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context: (...) (g) where applicable, the functionality, including applicable technical protection measures, of digital content; (h) where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.”'' +|
|Five Challenges For The Internet of Things Ecosystem +||''"Data Sharing: In the Internet of Things paradigm, data is gold. However, data provisioning builds off a social contract between large corporations and customers. Corporations provide a free or nominally-priced service in exchange for a consumer’s personal data. This data is either sold to advertisers or used to develop further products or services useful to consumers. Third-party applications, which build off the core service, poach customers (and related customer data) from such applications. For established networks and large corporations, this can be detrimental practice because such applications eventually poach their customers. In such a scenario, large corporations need to balance their approach to open source with commercial considerations."'' +|
|Google Glass and the Demise of Ownership +||''"Another complication is that Google Glass, like many recent- and emerging-generation consumer electronics products, is made useful largely through its ability to connect to license-based service offerings. When you use a service such as Google Maps, you do so under a license to access the associated content—you’re a licensee, not an owner of that content."'' ''"The model of requiring purchasers of consumer electronics devices to first enter into restrictive contracts as a condition of sale and then to agree to restrictive licenses when using those devices raises multiple concerns. Most fundamentally, it does an end run around legal frameworks that evolved specifically to prohibit anti-competitive and consumer-unfriendly downstream control over transfers of ownership. And it’s confusing for consumers."'' +|
|Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the implementation and effects of Directive 91/250/EEC on the legal protection computer programs +||''“lawful acquirer” did in fact mean a purchaser, licensee, renter or a person authorised to use the program on behalf of one of the above'' +, ''In the view of the Commission, what was intended by Article 5 (1) and recital 18 was that it should not be possible to prevent by contract a “lawful acquirer” of a program doing any of the restricted acts that were required for the use of the program in accordance with its intended purpose or for correcting errors. It is, however, possible for a contract to include specific provisions that “control” the restricted acts which may be carried out by the user of the computer program.”'' +|