JILT 1998 (3) - Leif Gamertsfelder
A. Fitzgerald, B. Fitzgerald, P. Cook & C. Cifuentes (eds)
Going Digital: Legal Issues for Electronic Commerce, Multimedia and the Internet
Prospect Media Pty Ltd AUD$145.00
ISBN 1 86315 134 1
Reviewed by
Leif Gamertsfelder
Deacons Graham & James, Australia
Leif.Gamertsfelder@dgj.com.au
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1. Introduction
Going Digital is a collection of papers delivered by some of Australia's leading specialists in the fields of law and technology at a series of seminars by the same name organised by QANTM, a Cooperative Multimedia Centre. These seminars were presented in several major centres in Australia.
The work exposes many of the difficulties that currently beset traditional intellectual property regimes in relation to the regulation of rights, duties and obligations in the digital age. Fortunately, as was pointed out by the Federal Attorney-General, The Honourable Daryl Williams, when he launched Going Digital, the contributors ensure that their papers do not just identify problems, but also offer practical solutions to both domestic and international problems.
Going Digital is organised into four parts. Part I comprises four chapters which examine copyright issues in the digital age. Dr Andrew Christie contributes a chapter on copyright protection for web sites, which provides a useful overview of many of the issues that arise in this context. Anne Fitzgerald and Cristina Cifuentes cover an issue of particular importance in a chapter that discusses the unique difficulties that arise when one seeks to apply traditional copyright laws in multimedia contexts. In a logical progression, Brian Fitzgerald examines the role of international law in protecting copyright. This chapter outlines recent developments in the international copyright agreements which are designed to ensure the continued relevance of copyright protection in the digital age, and closes with a discussion of the impact of international law in the development of Australian copyright law. Chapter 4 by Mike Lean provides a useful guide, based on the author's experience as a university copyright officer, as to how best to approach the sometimes difficult task of obtaining copyright clearances for works which are to be used in multimedia productions.
In Part II the focus changes to patents and trade marks. John Swinson reveals that patents for electronic commerce advances are becoming increasingly common in the United States of America. After discussing the law relating to patents and the features of patents, he examines recent grants of patents over software and digital technologies and concludes by making a strong case for the consideration of patent protection to e-commerce technology developers. The theme of protecting digital technology is expanded on in David Webber's chapter where he looks at the intellectual property mechanisms, namely copyright and patents, available to protect Internet software. The chapter contains a succinct overview of the advantages and disadvantages of both mechanisms and includes an examination of relevant US and Australian case law. Phillip Hourigan covers the last major issue in this area in his chapter on domain names and trade marks. Although the focus of this chapter is on the Australian experience in relation to the role of trade marks in domain name disputes, the paper contains a welcome analysis of the US case law to illustrate various issues. The chapter also includes useful practical information relating to the registration of domain names.
Part III investigates the issues that arise in the context of electronic commerce. Andrea Beatty's chapter on Internet banking, digital cash and smart cards is an exhaustive examination of the issues that arise in this area. She begins with a short outline of important concepts and then shifts to focus on important legal issues. The paper concludes by pointing out something that resonates, to varying degrees through most of the chapters, that there is no acceptable legal framework in which Internet technologies (in this case Internet banking, digital cash and smart cards) can operate in Australia or overseas. Adrian McCullagh continues this theme in relation to electronic contracts and digital signatures. There is a brief outline of the practical aspects of relevant technology and reference to pertinent legal issues, such as public key encryption, jurisdiction and contractual formation issues. The final chapter in this part takes a very practical approach to the topic of web site development agreements. Steve White's paper reminds the reader of the importance of regulating risk, liability and intellectual property issues through contractual mechanisms prior to the development of web sites.
Going Digital then examines the liability issues that arise in the on-line world. Alistair Payne's contribution looks primarily at copyright liability according to principles developed in US cases and how those principles could be applied in the Australian environment. A chapter by Patrick Quirk follows with an overview of defamation law and how that law might impact on users of the Internet. This chapter also contains a section on how to limit or avoid liability in this context. The last chapter on liability issues by Brian Fitzgerald looks at the implications of copyright breaches and defamation breaches for an Internet Service Provider (ISP) whether or not the ISP caused the original breach.
The last contribution to Going Digital is an examination of privacy issues by Patrick Gunning. This paper discusses how Internet technologies impact on privacy and the laws that regulate privacy issues.
In order to navigate the array of issues that the work covers, Going Digital contains a comprehensive index. And for those who are not familiar with the esoteric terminology that unfortunately pervades this subject, the inclusion of a glossary is helpful.
Whilst each chapter generally contains sufficient references to allow a reader to conduct more specific research of the issues that are examined, a few sections of Going Digital lack adequate referencing. However, this is no doubt attributable to the fact that the subject of the work is an area of law that is not yet fully developed rather than any fault of the authors or editors.
In conclusion, Going Digital is one of the first publications in Australia or elsewhere that attempts a comprehensive examination of the legal issues that arise in relation to the Internet. It achieves this aim with distinction and the editors deserve to be commended for producing a leading edge publication. Further, the practical suggestions that the authors provide should serve legislatures, lawyers, and students well in their attempts to grapple with and overcome legal problems in the digital age.
This is a Book Review published on 30 October 1998.
Citation: Gamertsfelder L, 'A Fitzgerald et al, Going Digital: Legal Issues for Electronic Commerce, Multimedia and the Internet', Book Review, 1998 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/98-3/gamer.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_3/gamertsfelder/>
