Treści cyfrowe – ujęcie definicyjne w unijnych i krajowych regulacjach prawnych
Digital content under European and Polish law

Summary/Abstract: This paper deals with the issue of defining digital content in existing as well as planned European and national legislation. The term ‘digital content’ was defined for the first time in EU law in Article 2 point 11 of Directive 2011/83/EU as ‘data which are produced and supplied in digital form’ – this definition corresponded to the postulate of technological neutrality. Similarly, a broad approach to digital content has been adopted under the Common European Sales Law (CESL). The scope of ‘digital content’ is adjusted in some legal definitions to the needs of a given legal act. Such autonomous definition is found in Article 4 point 43 of the Directive (EU) 2015/2366 on payment services in the internal market. The consequence of a widespread usage of the term ‘digital content’ or ‘digital services’ is its incorporation into an increasing number of legal acts. Adopting different scopes of multiple definitions of the same, rather universally understood term, although practiced in legislation, does not support legal transparency. Difficulties which could arise from such practices seem to have been noticed by the EU legislator. The newly proposed amendments to Directive 2011/83/EU, which constitute part of the ‘New Deal for Consumers’, aim to unify the way of defining ‘digital content’ and ‘digital services’. For this reason, as well as due to the variability of the forms of digital content and digital services, the creation of definitions departing from the common understanding, be it autonomous or casuistic, should be avoided on the European as well as national level.

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