We encounter increasingly more economic transactions involving data (aka digital content): corporations purchase raw data, SMEs subscribe to cloud services, consumers stream/download content. Nonetheless, there is no express legislation on these ‘data contracts’. Because of this, the current law on data contracts lags behind compared with other frequently-used contracts. This leads to eroded contractual freedom, inefficiency, uncertainty, fragmentation of laws as well as privatised law-making and enforcement. Due to AI and smart contracts, these trends are likely to persist. On top of that, the transposition of new EU consumer protection legislation will lead national legal orders to promulgate lex specialis rules without even providing lex generalis rules! Hence, we are in need of a general framework that spells out default rules for data contracts on the one side, and targeted, policy-effective mandatory rules on the other.

Calls for a better digital contracting balance are being issued by important actors in multiple fields of law. They pop up in topical debates on copyright and on consumer law as well as on potential data economy regulation. In spite of this, competent lawmakers like the EU are reluctant to take action. Innovative research is needed to assess the feasibility to enact EU legislation that provides a general framework governing all types of contracts for the supply of data, whether IP-protected or not, and, if so, to reveal what it should look like.