Copyright Meets Consumer Data Portability Rights: Inevitable Friction between IP and the Remedies in the Digital Content Directive

The 2019 Digital Content Directive harmonizes the remedies of consumers in case of a lack of conformity of digital content or a digital service supplied to them by a professional party. Although the Directive is ‘without prejudice’ to intellectual property (IP), there are inherent overlaps with copyright in scenarios where consumers are entitled to terminate the contract. On the one hand, Art. 16(4) provides consumers with a restricted right at the time of termination to retrieve any nonpersonal content which was provided or created by them when using the digital content or service. It is argued that exercising that right can entail infringements of third-party copyright, depending on the circumstances, and that IP may often undermine the very regulatory concept and objectives of this ‘portability right’, particularly when cocreated content is involved. By contrast, traders should not be allowed to reject portability requests by waiving their own IP rights, as this would hamper the effectiveness of the consumer’s remedy. On the other hand, directive-based termination does not necessarily affect the fate of terms licensing or transferring IP rights in consumer content to traders, service providers or their (sub)licensees, because this is primarily a matter for national law. However, it is argued that traders, service providers and remaining service users can only keep relying on those licenses if their uses are within the scope of Art. 16(3) of the Directive, notwithstanding any deviating agreement to the detriment of the consumer.