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JILT 1997 (1) - David Bainbridge

Chris Reed (ed)

Computer Law

Blackstone, 1996 (3rd edn)
396pp + Table of Cases and Table of Statutes - £19.95
ISBN 1 85431 448 3

Reviewed by
Dr. David Bainbridge
Aston Business School
D.I.Bainbridge@aston.ac.uk

Contents
1. Introduction
2. Hardware Contracts to Copyright
3. Patent Protection to EC Computer Law
4. Conclusion

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Date of publication: 28 February 1997

Citation: Bainbridge D 'Reed C: Computer Law', Book Review, 1997 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/bookrev/97_1bain/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_1/bainbridge/>


1. Introduction

This book covers a diverse range of legal subject areas examined from the perspective of information technology and which, in this context, have come to be known collectively as "computer law" or "information technology law". As the use of computers has now infiltrated virtually every human activity, the legal issues raised and problems flowing from the use of technology cut across traditional boundaries. The impact of computers is now most keenly felt in relation to the protection and control of information stored, modified and transmitted in digital form. New legal structures have been developed in reaction to these issues such as data protection law and semiconductor regulations. Other areas of law have required substantial modification and development such as copyright law and the law of evidence.

In other respects, the impact of computer technology has focused attention on the special problems surrounding the acquisition of computer hardware and software and liability for defective hardware and software. Here too there has been substantial development of the law. Computer technology has also provided new opportunities for commercial and criminal activity and the law often has struggled to keep pace. But just as yesterday's challenges are met, albeit imperfectly, new encounters present themselves as a result of the ever evolving nature of information technology.

The next major war is certain to be waged in the virtual world of the Internet. That being so, the third edition of Computer Law disappoints because the legal implications of the Internet are not discussed at length. Whilst noting the importance of legal issues concerning the Internet, Reed surprisingly states at p.13 "Commercial use of the Internet is so new that it has not been possible to discuss its legal implications in this book". There have now been a number of cases on the Internet, dealing with copyright, defamation and pornography. Indeed, even the Court of Session, Outer House, in Scotland has recently had to ponder the nature of Web Pages on the Internet for copyright purposes. One is left to wonder why, with one notable exception, the authors of a book who, in other respects and previous editions, have not shirked from putting their views on difficult and as yet uncharted areas of law, should feel such an awesome regard for the legal implications of the Internet. The exception is Millard who does manage to fill two pages on copyright infringement on the Internet.

This is a gaping void in a book on computer law published in 1996. Closer examination of the book does, perhaps, throw some light on a possible reason. Although there are some exceptions, the chapters have simply been updated since the previous edition which is a shame because there have been a number of major developments which should have warranted a detailed re-examination of the authors' perceptions of the some critical legal issues covered. For example, in Graham Smith's otherwise excellent chapter on software contracts, scant regard is given to the landmark cases of Salvage Association v CAP Financial Services Ltd [1995] FSR 654 and St Albans City and District Council v International Computers Limited [1995] FSR 686 (High Court) and, as yet, unreported 14 August 1996 (Court of Appeal) on liability for defective software and the control of exclusion clauses in software licences and to Beta Computers (Europe) Ltd v Adobe Systems (Europe) Ltd [1996] FSR 367 on shrink-wrap software licences. Smith is almost dismissive of this latter case which, admittedly, is a Scot's case the judgment in which is based in part on the doctrine of ius quaesitum tertio, which has no direct equivalent in English law. It is, nevertheless, a case of some significance and Lord Penrose's approach giving rights to a third party under a contract can be resolved in English law by acknowledging that a licence agreement does not give rights to the licensor, rather it gives rights, under specified terms, to the licensee. Giving effect to shrink-wrap licences also has the advantage of according with recent developments in the United States.

2. The chapters dealing with Hardware Contracts to Copyright

The structure of the book remains as before and, following an introductory chapter by the editor (curiously numbered Chapter 0), there are chapters on hardware and software contracts written by Reed and Smith respectively. There have been a number of developments in legislation and case law in these areas and the chapters have been updated accordingly, though in more detail in the hardware contracts chapter, which has had to incorporate, inter alia, the changes wrought by the Sale and Supply of Goods Act 1994. The Salvage Association and St Albans cases are dealt with in greater depth in the chapter on hardware contracts than they are in the software contracts chapter. This is surprising as both cases concerned software licences.

Following a worthy exposition on the liability issues flowing from the use of information technology, there comes Millard's comprehensive chapter on copyright. This is a major chapter and contains a good discussion of US copyright law as it applies to software but which lacks any mention of Lotus Development Corp v Borland International Inc (now reported at [1997] FSR 61) where the 1st Circuit Court of Appeals held that the Lotus menu command system was a method of operation and, hence, expressly excluded from protection by section 102(b) of the US Copyright Act. This decision stands after a more recent split judgment in the US Supreme Court. Although only recently reported, the Court of Appeals decision was handed down on 9 March 1995 and has been extensively written about in academic, popular and professional journals.

On the whole, the description of UK copyright law and the implications for law here of the US experience is very good. It was something of a shock not to find a reference in the table of cases to John Richardson Computers Ltd v Flanders [1993] FSR 497. This is indisputably one of the UK's most important cases on copyright infringement of computer programs. However, Millard does discuss the case in his chapter though his treatment is relatively brief. He plainly prefers the judgment of Jacob J in Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275. But this is to miss the point that the Richardson case is so important because, unlike Ibcos and in spite of Jacob J's mainly obiter criticisms of Ferris J's judgment, it deals with the issue of non-literal infringement and is clear authority for the view that taking non-literal elements of computer programs can, in principle, infringe the copyright subsisting in those programs. The two cases are instantly distinguishable and, together, set out a workable and robust view of copyright in computer programs.

3. The chapters dealing with Patent Protection to EC Computer Law

The chapter on patents in entirely new and replaces the previous one written by Professor Dworkin who was unable, due to other commitments, to prepare a revised chapter. The new chapter is by Press and is, in many respects, a very good chapter. It deals extensively with the European Patent Convention and patent law in the US. To some extent, the UK experience of software patents is less well done. The sequence of the chapter is strange in that a full description of the basic requirements for the grant of a patent are left to near the end of the chapter. Newcomers to patent law might find this confusing as, after some general introductory material including describing the position of UK patent in relation to Europe and beyond, the author launches into a detailed examination of patents for computer-related inventions.

The two chapters following, which cover semiconductor protection by Hart and Reed and confidential information by Coleman, are barely changed. This is acceptable as there has been little development in these areas since the second edition. Software companies, computer systems engineers and programmers would do well to read Coleman's chapter which contains a good description of how the law of confidence affects employees and freelance workers. The remaining chapters cover computer crime (Lloyd and Simpson), evidence (Silverleaf), electronic data interchange (Reed), data protection (Walden) and EC computer law (Cowen). On the whole, all of these chapters are comprehensive, well-written, up to date and set out their material in an accessible manner. Some criticisms, which are very minor, include the fact that there is no mention of the Bedworth case (the addicted hacker who was acquitted on charges under the Computer Misuse Act 1990) which, although of no significance in terms of precedent generated immense interest in the computer industry and fuelled calls for the 1990 Act to be strengthened. The chapter on data protection includes much background material and a full description of the current UK legislation together with a brief description of the EC Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The importance of this Directive is such that it would have been nice to see a fuller treatment of it.

Given the formidable task of co-ordinating the work of no less than 11 authors, it is inevitable that there is some overlap in the subject matter of some of the chapters. For example, the chapters on confidence and crime both carry a detailed analysis of Canadian law relating to the theft of information. On the whole, however, overlapping material has been kept to a minimum. Better still, no obvious contradictions were apparent. The editor, who contributed four chapters and co-authored another has acquitted himself well. For some inexplicable reason, the front cover of the book is almost identical to that for the second edition; there are, however, a number of subtle changes - perhaps Blackstones will launch a spot the difference competition.

4. Conclusion

The overall feeling the reader is left with is that the book is very comprehensive and covers a lot of ground in an effective manner. The individual contributions are all well written and there are no incongruous clashes of style. The authors are all lawyers (one is a patent agent), academic or practising, though some have academic qualifications in other disciplines. One consequence is that the book looks at the issues from a lawyer's perspective perhaps a little too much. A little more appreciation and discussion of issues of current concern to the computer industry would have been welcome and given a better balance. The paucity of discussion on the Internet has already been alluded to. Other current issues concern data warehousing and the growth of "one-man" programming companies.

The book is claimed to be useful "... not only for lawyers, but also to businesses and scientists for whom computing technology is an integral part of their daily activities". Because of the points mentioned above and the "lawyerly" style of the book, it is more likely to find favour with law students and some lawyers than with computer professionals.

When the first edition of this book was published in 1990 there were very few textbooks written on computer law suitable for undergraduate students. At that time, the teaching of computer law, as such, in university law departments was relatively rare. There are now a number of texts on the subject, pitched at various levels. It is important, therefore, to keep its place as one of the leading undergraduate texts, that new editions of Computer Law edited by Reed fully address issues of current concern to the computer industry in addition to setting out computer law in a clear and accessible manner. The third edition has continued the excellence of the book in the latter respect but has disappointed as to the former. Of course, it is a mammoth task to bring out new editions of edited books having a large number of authors, many of which have been busy with other publishing activities. Nevertheless, the book remains one of which lecturers and students will find very useful. A significant re-work of the book will be overdue by the time the fourth edition is published and it is hoped that the authors are willing to undertake this.

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