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Managing customers rights on the markets by Gilles Vercken, Lawyer


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Managing customers rights on the markets by Gilles Vercken, Lawyer

  1. 1. 14 rue Séguier – 75006 ParisTel. 01 42 21 34 75 – Fax 01 42 21 32 77 – contact@gillesvercken.comWebgame Conference 2013 – Light Talk1« Managing customers rights on the markets »WebGame ConférenceJune 20, 2013
  2. 2. 14 rue Séguier – 75006 ParisTel. 01 42 21 34 75 – Fax 01 42 21 32 77 – contact@gillesvercken.comWebgame Conference 2013 – Light TalkWHICH RIGHTS DO HAVE YOUR VIDEOGAMES USERS ?(CONSUMER LAW, COPYRIGHT LEGISLATION, FILESPROPERTY, RESALE POSSIBILITY, PERSONAL DATA)FIRST THINGS TO THINK OF2
  3. 3. Webgame Conférence 2013 – Light Talk3The relationship with the videogames userslegal frameworkIt’s a contract … (1)concerning a specific product … (2)concluded with consumers (3).
  4. 4. Webgame Conférence 2013 – Light Talk41. It’s a contractVideogamesPublishersCustomersDistributionplatformsUSERESELL ?UGCContractLawDataProtectionCopyright ConsumerlawOTHER€€
  5. 5. Webgame Conférence 2013 – Light Talk5The relationship between the user and the game publisher must be thought through and legallyframedWhy ?Two goals :• Secure the relationship while being legally compliant to avoid risks – legal risks as well as risksrelated to reputation (complaints from clients, action of the French General Directorate forTrading, Consumer Affairs and Fraud Control, action of the French Data Protection Authority)• Value the consumer’s data to your profit (avoid the resell or the game, the account, the UGC…exploit the personal data)In ten minutes …, the key points …1. It’s a contract
  6. 6. Webgame Conférence 2013 – Light Talk6Be careful to take into account the global dimension• You can choose the law that will govern BUT• There must be an objective link between the contractual relationship and the chosen regulation ;it would otherwise be a fraudulent evasion of the law (e.g. : you are established in the UK, theuser is in France and you choose the laws of Delaware, US… wrong choice)• Even if the regulation applying to the contract is not the french law, some rules will prevail aspublic policy provisions whenever the consumer resides in France (consumer protection,personal data law)1. It’s a contract
  7. 7. Webgame Conférence 2013 – Light Talk7It’s a contract …… that’s must observe the contract law ….• Definite object (what is exactly the service provided ?)• Evidence of consent• Stipulate a double click• Keep the confirmation e-mail• Keep the applicable version of the terms of use• Do not change the terms of the contract unilaterally1. It’s a contract
  8. 8. Webgame Conférence 2013 – Light Talk82. Concerning a particular productA video game is a complex artwork protected by copyright• For the software part : the specific regulation on software shall apply• For the non-software part (graphics, scripts, music) : the general copyright rules shallapply(Cour de cassation, June 29, 2009)
  9. 9. Webgame Conférence 2013 – Light Talk92. Concerning a particular productTwo topics :2.1 Second-hand market2.2 What is the legal statut of the contents generated by videogame users ?
  10. 10. Webgame Conférence 2013 – Light Talk102. Concerning a particular product2.1 Second hand market→ Question : can the user resell the videogame ?• Traditionnal approachYes, if the videogame is incorporated within a physical supportNo, if the videogame is available online• But a decision of the European Court of Justice rises some doubts : CJUE, Usedsoft v/ Oracle, July 3rd, 2012A software publisher which provides the file of the software on CD or through downloading, with user licence foran unlimited period, does make a sell legally speaking.Such a publisher can no longer oppose the resale of that copy.And this even if the user license prohibited explicitly the possibility of reselling the software.
  11. 11. Webgame Conférence 2013 – Light Talk112. Concerning a particular product2.1 Second hand market→ Question : could that decision apply to the videogames ?• Answer : maybe it could, maybe not…• Precaution : modify the user licences so as to shorten the length of their validity, and/or stipulatea subscription system, and/or state clearly that the files’ property shall not be transferred to theuser
  12. 12. Webgame Conférence 2013 – Light Talk122. Concerning a particular product2.2 What is the legal statut of the contents generated by videogame users ?Caution : the user account is not a content… The user must be allowed to create his personnal account, even thoughthe question is controversial.What about the copyrightable content created by the user ?Several possibilities :• The publisher acquires the rights on the created content on exclusive terms, and the user is not allowed to usethem apart within the gameThe legal issue in this case under french law resides in the following of the imperative rules governing such atransfer : written act, usually providing a financial compensation…• The publisher acquires a mere user licence, without any financial compensation… Should then be the userallowed to « market » the rights generated by his creation ?
  13. 13. Webgame Conférence 2013 – Light Talk132. Concerning a particular product2.2 What is the legal statut of the contents generated by videogame users ?Way out :• The publisher can organize himself a market for the goods generated within the game itself.• The advantage is to receive benefits.• The disadvantage lays in the operational and legal complexity of the proceeding.
  14. 14. Webgame Conférence 2013 – Light Talk143. Concluded with consumersTwo topics3.1 Consumer law3.2 Data protection
  15. 15. Webgame Conférence 2013 – Light Talk153. Concluded with consumers3.1 Consumer law - General rules• General obligation of information : article L. 111-1 of consumer codeAll business suppliers of goods or services must, prior to conclusion of the contract, ensure that the consumer ismade aware of the essential characteristics of the goods or services.• Price and conditions of sales : article L. 113-3 of consumer codeAll product vendors or service providers must, by means of marking, labelling, bill-posting or by any otherappropriate procedure, inform the consumer of prices, any limitations of contractual liability and special terms ofsale.• Information on delivery date : article L. 114-1 of consumer codeIn any contract for the sale of goods or the supply of services to a consumer, the businers must, when the deliveryof the goods or the supply of the services is not immediate and if the agreed price exceeds the thresholds fixed byregulation, indicate the final date by which it undertakes to deliver the goods or perform the services.
  16. 16. Webgame Conférence 2013 – Light Talk163. Concluded with consumers3.1 Consumer law - Specific rules for distance selling of goods and services :• Required information : article L. 121-18 of consumer code :« Without prejudice to the information referred to in Articles L. 111-1 and L. 113-3 and that provided under ArticleL. 214-1, the contract offer must contain the following information:1 The name of the seller of the product or the service provider, his telephone number, his address or, in the case of alegal entity, its registered office and, if different, the address of the establishment responsible for the offer;2 The delivery costs, where applicable;3 The terms of payment, delivery or execution;4 The existence of any right of withdrawal, save for cases in which the provisions of the present section exclude theexercise of such a right;5 The price and term of validity of the offer;6 The cost of using the distance communication system when it is not calculated in reference to the standard rate;7 Where applicable, the minimum term of the proposed contract, when it relates to the continuous or periodicsupply of goods or services.Such information, the commercial nature of which must be indicated unequivocally, shall be communicated to theconsumer clearly and comprehensibly by any means compatible with the distance communication system used.If telephone canvassing or any similar technique is used, the professional must explicitly indicate his identity andthe commercial nature of the call at the beginning of the conversation ».
  17. 17. Webgame Conférence 2013 – Light Talk173. Concluded with consumers• Confirmation of informations : article L. 121-19 of consumer code :« I. - The consumer must receive the following in writing or on some other durable medium available to him, ingood time and upon delivery at the latest:1 Confirmation of the information referred to 1 to 4 of Article L. 121-18 as well as that indicated in Articles L. 111-1 and L. 113-3 and that provided pursuant to Article L. 214-1, unless the professional fulfilled that obligationbefore the contract was concluded;2 Information concerning the terms and conditions applicable to exercise of the right of withdrawal;3 The address of the suppliers establishment at which the consumer may make any complaints;4 Information concerning after-sales service and commercial guarantees;5 The conditions applicable to cancellation of the contract if it is open-ended or has a term or more than one year.II. - The provisions of the present article are not applicable to services which are provided once only via a distancecommunication system and invoiced through that system by the operator, with the exception of 3 ».3.1 Consumer law - Specific rules for distance selling of goods and services :
  18. 18. Webgame Conférence 2013 – Light Talk183. Concluded with consumers• Right of withdrawal :Article L. 121-20 of consumer code : « The consumer has seven clear days in which to exercise his right ofwithdrawal without giving a reason therefor or incurring a penalty, with the exception, where applicable, of the costof returning the goods. The consumer may exceed this time limit in the event of him being unable to travel andsimultaneously needing to call for an immediate service which is essential to his conditions of existence. In whichcase, he shall continue to exercise his right of withdrawal without giving a reason therefor or incurring a penalty.The time limit indicated in the preceding paragraph runs with effect from receipt of the goods or, for services, fromacceptance of the offer.When the information referred to in Article L. 121-19 has not been provided, the time limit applicable to exerciseof the right of withdrawal is increased to three months. If such information is provided within three months ofreceipt of the goods or acceptance of the offer, however, this shall activate the seven-day time limit referred to inthe first paragraph. If the seven-day time limit expires on a Saturday, Sunday or public holiday, it is extended to thenext working day ».Article L. 121-20-1 of consumer code : « When the right of withdrawal is exercised, the professional is required torepay the consumer without delay and within thirty days, at the latest, of the date on which the said right wasexercised. Any sum outstanding thereafter shall bear interest at the legal rate in force ».3.1 Consumer law - Specific rules for distance selling of goods and services :
  19. 19. Webgame Conférence 2013 – Light Talk193. Concluded with consumers• Date of delivery : article L. 121-20-3 of consumer code :« Unless otherwise agreed between the parties, the supplier shall fulfill the order within thirty days of the dayfollowing that on which the consumer placed his order for goods or services.In the event of a supplier failing to perform a contract on account of the goods or services ordered beingunavailable, the consumer shall be informed of such unavailability and, where applicable, shall be reimbursed forany sum paid without delay, and within thirty days at the latest. Any sum outstanding thereafter shall bear interestat the legal rate.However, if such an eventuality was foreseen prior to conclusion of the contract or is provided for therein, thesupplier may provide goods or services of equivalent quality and price. The consumer shall be informed of thateventuality clearly and comprehensibly. The cost of returning goods following exercise of the right of withdrawalshall be borne by the supplier in such cases and the consumer shall be informed thereof.The professional is automatically liable towards the consumer for the proper fulfilment of the obligations derivingfrom a distance contract, whether such obligations are to be fulfilled by the professional who concluded thecontract or by other service providers, without prejudice to his right of recourse against the latter.He may gain exemption from some or all of his liability, however, by proving that the non-performance or poorperformance of the contract was attributable to the consumer, to an unforeseeable and insurmountable fact of athird party, or to an instance of force majeure ».3.1 Consumer law - Specific rules for distance selling of goods and services :
  20. 20. Webgame Conférence 2013 – Light Talk203. Concluded with consumers3.1 Consumer law - Public policy and applicable law :• Article L. 121-20-16 of consumer code : « The provisions of the present section are a matter ofpublic policy ».• Article L. 121-20-15 of consumer code :« When the parties have determined that the contract shall be governed by the law of a State which isnot a member of the European Community, a judge before whom that law is invoked is required todisregard it and apply the more protective provisions of the law applicable at the consumers normalplace of residence deriving from transposition of Directive 97/7/EC of the European Parliament andCouncil dated 20 May 1997 concerning consumer protection in regard to distance contracts, andDirective 2002/65/EC of the European Parliament and Council dated 23 September 2002 concerningdistance marketing of financial services to consumers, when the contract has a close link with theterritory of one or more European Community Member States; this condition is deemed to have beenmet if the consumers are resident in a Member State ».
  21. 21. Webgame Conférence 2013 – Light Talk213. Concluded with consumers3.1 Consumer law - Consequencies :Draw up a clear offer… and not misleading for the user :The DGCCRF is the agency in France that has the investigative authority and the power to imposesanctions on companies in order to discipline the violations against the consumer protectionregulation.In 2012, the DGCCRF led an inquiry on the Terms of use applied by online videogames publishers(focused on free-to-play games)
  22. 22. Webgame Conférence 2013 – Light Talk223. Concluded with consumers3.1 Consumer law – Main critics :• Deceptive offer : for example, the user starts playing the game on a free to play basis and thenhas to pay, or to buy add-ons, and the point where the game stops to be free is not clearlyidentified and the free to play part of the game is not autonomousOr else, when it is specified that the user has to be connected online to be able to play• What happens if the publisher decides to stop distributing the game ?The contract must:- Specify a notice, of which the term is long enough (maybe 6 months?)- Provide for a refund of all sums paid which were paid over the term• Monetization within the game: the consumer’s information has to be irreproachable and allrelated questions must be taken care of with particular care
  23. 23. Webgame Conférence 2013 – Light Talk233. Concluded with consumers3.2 Data protection :Three important aspects• Respect persons’ rights• Comply with formalities of the French Data Protection Authority• Internally manage personal data
  24. 24. Webgame Conférence 2013 – Light Talk243. Concluded with consumers3.2 Data protection :Reminder about the principles• Collection and treatment of data must be loyal and lawful• Purpose of the collection must be explicit and legitimate• Adequacy, relevance and proportionality of the personal data to the purpose• Correctness, completeness and update of personal data• Non conservation in a form enhancing identification beyond the term necessary to the purpose
  25. 25. Webgame Conférence 2013 – Light Talk253. Concluded with consumers3.2 Data protection :Concrete applicationsThe person must be informed of his or her rights before validating the Terms of Use, i.e., on thesubscription screen.The person has to be clearly explained the procedure in case the login information are retrieved andcookies are placed on the computer.The person must expressly agree to his or her personal data being transferred to commercialpartners.There is a specific regime for all personal data sent to a country outside of the European Union.It is necessary to comply with formalities of the French Data Protection Authority because thepenalties can be high.
  26. 26. Webgame Conférence 2013 – Light Talk26Thanks you so much …And any question ?