HOW TO DRAFT A SOFTWARE LICENCE

Bainbridge's well-structured book begins with a short introductory chapter which explains not only the importance of software licensing (with reference to a number of real-world examples, such as St Albans), but also a good, non-technical explanation of what is understood by the term ?software?, the steps involved in software development and distinctions between different types of software, such as off-the-shelf and bespoke software programs. This discussion of the technology is well presented for the lawyer with no experience of computer programming, setting out as it does everything that (s)he will require to know about the concepts in order to understand the legal issues without becoming bogged down in technical complexity. Following the introduction, the substantive part of the book begins with a chapter on copyright and software. This covers all the major elements of copyright as they relate to this specific context, including duration, authorship, ownership and moral rights. The chapter also deals with significant issues of copyright and computer programming languages, computer-generated works, and database rights under the 1997 regulations. The text has clearly been written with those with a legal background in mind, although it emphasises very much practical rather than theoretical aspects, as is consistent with its stated aim. 'The purpose of this book', writes Bainbridge in the introductory chapter, 'is to provide practical guidance in the drafting of licensing requirements.'

The focus on practical guidance continues into a third chapter, which discusses related issues of industrial property rights - confidentiality, patent, design rights, trade marks and so on. Following chapters discuss the legal environment in which a software licence is drafted, as well as defective liability issues. In respect of the legal environment, the book successfully draws together several different strands of relevant law, such as copyright licensing for different types of software, contracting issues such as the significance of the Unfair Contract terms Act 1977, data protection legislation and even the Computer Misuse Act 1990. Consideration is also given to the impact of European competition law. This section of the book is especially useful to its aim of providing a practical guide, showing as it does how these concepts may interrelate.

It is in its latter part that this book really comes into its own in terms of the stated purpose of acting as a practical guide to drafting a software licence. There is a broad consideration of all the key aspects of a licensing contract, including, for instance, obligations of the parties, renewal and termination, liability and, in particular, a good discussion of inclusion of terms relating to dispute resolution and ADR. [?] Especially useful is a checklist of common terms and comments on what those terms tend to mean in practice. Bainbridge then considers off-the-shelf software licences and licences in respect of bespoke software each in turn, discussing the differing issues that are raised by each. These are, of course, two very different animals, and should ideally be discussed separately, not lumped together as in so many IT law texts. The practical slant of this book is further bolstered by a short chapter on issues in software procurement - feasibility studies, prototyping, tenders and so on - which helps the lawyer to understand not only the legal issues involved directly here, but also something more of the overall context in which software licences become an issue for the IT industry and the (commercial) end-users of its products.

This second edition of the book adds two short chapters to those which appeared in the first, dealing with the negotiation of a software licence and practical issues which arise in relation to outsourcing. The latter chapter especially offers advice that is arguably more useful now than when it was written in late 1998.

Finally, mention should be made of the Appendixes, which provide two example software licences; one in respect of bespoke software, the other relating to off-the-shelf products. These help immensely in understanding how such an agreement is put together and set out, again furthering the book's intention of providing a practical guide. The one criticism that can really be levelled at the book is in relation to the glossary provided; for instance, one might question the value of repeating a definition of software when this has already been eloquently dealt with in the introductory chapter. Perhaps this might be edited and expanded in future editions in order to produce something as useful as the rest of the book. On the whole, however, this is a very useful and eminently readable book that will be of much use, both to practitioners new to drafting such agreements and to students of IT law wishing to understand something more of the practical issues involved in applying the theory.