Digital content and the contract of sale : critical analysis of the proposed amendment to art. 555 of the civil code

Implementation of the directive 2011/83/EC on consumer rights into Polish law involved entrenching in domestic law a very controversial idea of extending the scope of the contract of sale to the so called ‘digital content’. The idea has since been discarded but the problem it was supposed to address, i.e. the need to adapt civil law to the changing technological circumstances and the fact that more and more often contracts akin to contracts of sale apply in fact to digital and immaterial subject-matter remains. The article discusses the planned yet since withdrawn amendment of art. 555 of the civil code and explains why it is impracticable, if not impossible, for the law to accommodate digital content by simply declaring that the provisions on sale should apply to it accordingly. Such a deceivingly facile solution would create numerous theoretical and practical difficulties, beginning with the very definition of the subject-matter and covering many other issues such as the problem of remuneration (price), overlaps with intellectual property law (including, but not limited to, copyright), ‘virtual’ property and the interaction with various services usually accompanying ‘digital content’. The article concludes that all these issues are undoubtedly significant and worthy of further analysis, but none of them would actually have been solved by the proposed amendment