ABSTRACT
.. Key findings:
• The multi-dimensionally networked industry 4.0 is approaching the limits of our bilateral understanding of contracts due to the virtualisation technologies used.
• Data, and in particular industrial machine data, have no rights in rem attached. There is no ‘data ownership’. Although data is legally protected in several respects, this protection remains fragmentary and incomplete.
• Rights to data must therefore be assigned by contract: It is advisable to follow the standards set by licence agreements from copyright law. Such contractual rights and obligations are only effective inter partes, but never in rem towards everybody. Data usage contracts must therefore be accompanied by effective technical and organisational measures for the de facto protection of data.
• The German law on General Terms and Conditions, may regard liability limitations as ineffective even in business transactions. This, choice of foreign law clauses should be considered in the contract negotiations.
• The networking of people, machines, virtualised and autonomous information technology systems makes it more difficult to attribute responsibility and prove causality. In the area of contractual liability, proof and presumption rules can be agreed. De lege ferenda, a compulsory insurance of the manufacturers and professional users as beneficiaries of such systems seems to make sense.
• In all regulations, care must be taken to ensure that the right incentives for due diligence are in place for all parties involved.
Lukas, Arnold JF, Contract Law Solutions for Digitalized Cross-Company Value Networks in Industry 4.0: Part 2: Contract Law (January 21, 2021).
First posted 2021-03-13 17:00:52
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