Re: Licensing in the EU: is there an Article 2B?

Christina Mikorey <mikorey[_at_]rumms.uni-mannheim.de> wrote:
>
> Trevor Cox <trevor3[_at_]ix.netcom.com> wrote:
> >
> > Are there proposals similar to Article 2B in the European Union, or in
> > in the international community? UNICTRAL has created a model law for
> > contracting in electronic commerce. However, I have not heard anything
> > about a European or an international proposal to regulate licensing of
> > software or other information.
>
> Trevor,
>
> Please explain to an European not so aquainted with US-Law:
> what ist Article 2B and
> what is UNICTRAL?

Christina,

UNCITRAL is the United Nations Commission on International Trade Law, which can be found at:

   http://www.un.or.at/uncitral/index.html

Another relevant cite/site is the United Nations Convention on the International Sale of Goods (CISG), which can be found at:

   http://ra.irv.uit.no/trade_law/documents/sales/cisg/txt/un.cisg.80.toc.html

Article 2B can be found at:

   http://www.law.upenn.edu/library/ulc/ulc.htm

Further, this forum's archives should have plenty of discussions regarding Article 2B. The archives can be found at:

   http://www.cni.org/Hforums/cni-copyright/

Article 2B is a body of contract law being drafted in the United States, which applies to the licensing of software and other types of information. Information includes, and is intended to cover, most works which can be copyrighted. A body of contract law for licensing is necessary, because the scope of the current contract laws were not intended to deal with the licensing of information. Applying the US contract for the sale of goods is problematic for two reasons. First, it is unclear that transfering software, or other information, over the Internet is a "good" since this information is not embedded in a tangible good. Second, there is no sale because the software or other information is being licensed to the customer. Further, based on this analysis, the CISG would not be an appropriate body of contract law to regualte licensing of information over the Internet. These are only two reasons (there are many more reasons) why the US is drafting Uniform Commercial Code Article 2B.

With the EU, I have not heard any commentary on these issues. With the proposed EU Copyright Directive, I understand that the EU considers on-line transactions as services. I am curious whether this will have any affect on the contract issues. If an EU company licenses software to a customer in the EU, what body of contract law would the parties look to in order to resolve any contract disputes over issues of contract formation, performance, warranties, etc.?

Finally, this is all relevant because if the US adopts Article 2B (which is being debated), there may be certain inconsistencies between the US and the rest of the world. The average non-US lawyer may have difficulty understanding the fundamentals of Article 2B, because it may be completely different than anything an individual has ever seen. With the Internet, US companies will be using choice of law clauses to make Article 2B the applicable law. How can there be an international standard, or an international body of contract law for the Internet if the US has its own way of regulating the licensing of information over the Internet?

Regards,
Trevor Cox
<trevor3[_at_]ix.netcom.com> Received on Tue Mar 03 1998 - 16:45:12 GMT