[Ecommerce] New International Instrument might exclude Consumer Contracts and Contract relating to IP

[Manon Ress/Essential]

UNCITRAL Working Group on Electronic Commerce is meeting in Vienna, 
October 14-18, 2002.
The Agenda of the meeting includes:
4. Legal barriers to electronic commerce in international instruments 
relating to international trade.
5. Electronic contracting: provisions for a draft convention.
See: http://www.uncitral.org/english/workinggroups/wg_ec/WP-97-e.pdf

Delegates discussed ways to make existing instruments (such as the CSIG) 
"e-commerce friendly" and the preparation of a new international 
instrument on electronic contracting.  There was interesting discussions 
on whether "consumer contracts" and "contracts relating to the grant of 
limited use of IP rights" should be excluded from that new instrument.

I understand the discussion will continue in the Spring in New York. 
E-commerce experts are supposed to be invited.

In March 2002 UNCITL WGIV paper you can read more about the issues.
See: http://www.uncitral.org/en-index.htm
# A/CN.9/WG.IV/WP.95 - Legal aspects of electronic commerce - Electronic 
contracting: provisions for a draft convention

QUOTE:
the preliminary draft convention is not limited to sales contracts,
but covers any contract “concluded or evidenced by electronic means”. 
There are, however, two notable exceptions, as indicated below.
(a) Consumer contracts
15. The first limitation that results from the deliberations of the 
Working Group concerns consumer contracts. Although mindful of the 
practical difficulty of distinguishing certain consumer transactions 
from commercial transactions, the Working Group came to the preliminary 
conclusion that it should not focus its attention on consumer protection 
issues (ibid., para. 122).
SNIP
That understanding is reflected in subparagraph (a) of draft article 2. 
The Working Group may wish to consider whether, as an alternative to an 
outright exclusion, the future instrument should follow the example of 
the UNCITRAL Model Law on Electronic Commerce, whereby an exclusion of 
consumer transactions is offered as an option for the enacting State.
SNIP
...issue that may deserve further consideration by the Working Group
concerns the manner in which an exclusion of consumer transactions 
should be formulated. At the thirty-eighth session of the Working Group 
it was suggested that the description of consumer transactions contained 
in article 2, subparagraph (a), of the United Nations Sales Convention 
might need to be reconsidered with a view to better reflecting 
electronic commerce practice (A/CN.9/484, para. 122). However,
as no alternative was then proposed to the criteria used in subparagraph 
(a) of article 2 of the United Nations Sales Convention, article 2, 
subparagraph (a) of the preliminary draft convention uses the same 
criteria as the United Nations Sales Convention.
SNIP

(b) Contracts relating to the grant of limited use of intellectual 
property rights
20. The second exclusion is not related to the purpose of the 
transaction but to the nature of the contract. From the discussion held 
by the Working Group on licensing arrangements (ibid., para. 116) and on 
transactions involving so-called “virtual goods” (ibid., para. 117), it 
appears that the initial assumption of the Working Group was that the 
new instrument should not be concerned with contracts having the
primary purpose of granting a limited right to use a certain product, 
under conditions laid down in the relevant agreement, which the Working 
Group referred to as “licensing contracts” (ibid.).
21. It should be noted, however, that, as it appears from the initial 
deliberations of the Working Group, the criterion for establishing such 
a limitation would not be the nature of the goods being traded (whether 
tangible goods or “virtual goods”), but rather the nature of the 
contract entered into by the parties and their intention (ibid.). Under 
such an approach, a contract where the buyer or “user” is free from 
restrictions as to the use of the product (be it a tangible or a 
“virtual good”) would normally be governed by the new instrument, even 
if such product incorporates patented or copyrighted work. In contrast, 
contracts where the agreement allows the producer or developer of the 
“virtual good” (or service) to exercise control over the product down 
through the licensing chain, the contract would remain outside the scope 
of the preliminary draft convention.
SNIP








-- 
Manon Anne Ress
Essential Information
www.essential.org
PO Box 19405, Washington, DC 20036
mress@essential.org, voice: 1.202.387.8030, fax: 1.202.234.5176