Contract Law Solutions for Digitalized Cross-Company Value Networks in Industry 4.0: Part 2: Contract Law

Abstract

The original German version of this text is available at http://ssrn.com/abstract=3767069 This series of papers deals with issues of contract law in Industrie 4.0. It is based on the law of the Federal Republic of Germany. Part 1 introduces the topic and explains the legal problems that arise in Industrie 4.0. Part 2 deals with issues of contract law: How are contracts concluded among autonomous software agents, what types of contracts come into question, and how must general terms and conditions be structured. Part 3 looks at issues of licensing law and intellectual property in data. Part 4 looks at the liability of autonomous systems in Industry and provides an outlook on possible future solutions. Industrial production is increasingly taking place in digitized value chains in which numerous independent companies cooperate in digital networks. Within the framework of such cross-company cooperation, industrial manufacturing processes autonomously manage themselves via integrated IT networks. This control increasingly makes use of intelligent systems that act either as autonomous software agents, in conjunction with humans or networked with other computers and machines. In addition to the industrial production process itself, parallel workflows of streams need to be handled, which is becoming more and more important. This results in specific situations and risks. Essentially, the questions to be answered are: • which legal status can be attributed to dataii that is generated in the production process, and • how can the liability in cross-company digital production networks be assessed and mitigated. In the absence of legislation, case law and technical standards that satisfactorily regulate these issues, contractual solutions are required between the cooperation partners in B2B (business-to-business) transactions, for which some approaches are outlined here. 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 particuliar industrial machine data, have no rights in rem attached. There is no data ownership. Although is legally protected in several respects, this protection remains fragmentary and incomplete. • Rights to 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.