With the Digital Fairness Act (DFA) the Commission aims to address a number of pressing issues faced by consumers and businesses in the digital environment. This includes dark patterns, addictive design, unfair personalisation and pricing practices as well as unfair digital contracts.
The Digital Fairness Act
In the digital environment, consumers often face situations that are not designed to be in their best interest, but rather to extract their money or time. As a result, the discussions around the DFA are already shaping up to focus on a few hot topics such as dark patterns, addictive design and protection of minors. However, the DFA also presents a great opportunity to strengthen access to knowledge and culture in Europe, and to remedy some of the failings of the digital licensing market.
While the main focus of the DFA will be on more “classical” business-to-consumer settings it is important to acknowledge that the very same practices which have been highlighted in the work of the Commission and the responses to the public consultation are appearing all over the digital environment. Addressing these issues within such a limited scope can, thus, only be a small step in a larger process of “fixing” the EU’s digital environment.
Personalised and unfair pricing
A large majority of respondents to the Commission’s public consultation on the DFA called for new binding rules regarding personalisation practices in the digital environment. The Commission’s main focus in this area is the use of profiling techniques to show personalised advertising and set personalised prices.
Unfortunately, access to knowledge in Europe has also been affected by the advances in the field of profiling. Past years have seen the rise of surveillance publishing, a practice we have previously criticised in our policy paper #19 on e-lending, whereby large publishers collect significant amounts of data, potentially including personal data, from researchers and other readers of digital works. In the scholarly sector, this has allowed larger publishers to develop and sell tools that identify research trends based on data extracted from research behaviour. More broadly, this practice raises significant concerns regarding the privacy of readers across Europe who may unwillingly and unknowingly be profiled based on their private reading habits.
As regards personal pricing, actors in the knowledge sector, and libraries in particular, have long had to deal with a massive imbalance of power vis-à-vis rightsholders. In licensing negotiations, this dominant position is frequently abused by rightholders to impose arbitrary and unreasonable prices for institutional actors or by forcing them to license entire bundles of works.
Licensing and ownership of digital products
Another issue that has gained a lot of traction in recent months, most notably via the “Stop Destroying Videogames” citizens’ initiative, and is prominently featured in the responses to the DFA’s public consultation is the increasing shift from ownership to licensing in the digital environment. While the public consultation focuses predominantly on video games, the issue itself is much broader.
While many sectors have felt this shift and the impact it has on the relationship between consumers and the goods they acquire, the European knowledge sector is particularly affected by the increasing reliance on licenses. Time and time again, we have seen that licenses are being used by rightholders to prevent uses that are otherwise permitted under copyright law and overwrite users rights through contractual terms or technological protection measures.
As we have highlighted in our policy paper #21 on the right to license and own digital materials, this problem is especially acute for libraries and other knowledge institutions. These actors increasingly depend on temporary and revocable licences to build and maintain their digital collections, making it harder and harder to fulfil their public service mission of providing access to knowledge in Europe.
Where to go from here?
At this stage, it remains to be seen which of these concerns will ultimately be reflected in the Commission’s proposal for the DFA, especially due to the somewhat limited scope of the proposal.
Nevertheless, the principles underpinning the DFA should not stop at the boundaries of consumer law. If the EU is serious about creating a fairer digital environment, the same ambition should guide its approach to access to knowledge and culture. The DFA can therefore be an important first step towards a broader effort to ensure that digital markets work not only for consumers and businesses, but also for the institutions that safeguard and provide access to Europe’s shared knowledge and culture.
