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JILT 2001 (2) - Charles Oppenheim 2

 


Contents

E-commerce: A Guide to
the Law of Electronic Business, 2nd Edition

D Tunkel and S York (Editors)

Butterworths, 2000,
ISBN 0 406 93395 2

 Reviewed by:
Professor Charles Oppenheim
Dept of Information Science
Loughborough University

 

 

1. Introduction

This, the second edition of what has rapidly become one of the standard texts on its topic, takes a wide ranging view of legal issues asociated with electronic commerce. Nearly 500 (large) pages long, it covers topics as wide ranging as secure communications, online contracts, competition law, data protection, defamation, obscenity, copyright, domain names, litigation and dispute resolution, taxation, e-finance, e-banking, e-insurance, corporate governance, and even conveyancing.

Each chapter is written by a different person, but the entire has been so well edited that you cannot see the seams.

2. Lawyer Friendly but Perhaps Not Business Friendly

The book, it is claimed, is aimed at both lawyers and at businessmen moving into electronic commerce. Whilst it is certainly appropriate for lawyers, it definitely is not businessman friendly. Its use of legal terms (some in Latin) and references to obscure law reports so poorly cited that no businessman could begin to guess what the source was (for example, 'CV 99-7654HLH (BQRx) (March, 2000)' on page 49 of the book) mean that it is not appropriate for the distressed businessman - which is a great pity.

Much of the text IS accessible, but the authors need to go that extra yard to make it user friendly for the non lawyer. Furthermore the index, though not bad, is not detailed enough for a non lawyer to use. To give one example, the Regulation of Investigatory Powers Act is discussed in the book, and indeed can be dug out of the index in an unlikely spot, but there is no entry for the topic under 'R' in the index.

3.Well Written and Authoritative

Generally, the text is of high standard, well written and authoritative, though I did identify some errors and omissions (see below), and it is inevitably already out of date (for example, on the EU Directive on Copyright, the BHB versus William Hill database right case, the UK Patent Office's report on software patents...). It is also not always clear when the text refers to English law, or to UK law as a whole.

4. The Shetland Times - 'Deep Linking' Case and Other Points

The authors placed over-reliance on the Shetland Times 'deep linking' case, which was settled out of Court and represents no precedent at all. The claim that one can conclude from this case that a title of a newspaper article enjoys copyright is wrong, because the defendants (mistakenly in my view) 'admitted' this in their submission. Similarly, the Court's (preliminary) view that a web service could be a 'cable broadcast programme' has been widely criticised by commentators and the authors should not have presented this opinion as a bald fact.

The term 'export of personal data' under data protection discussion is misleading, as it implies deliberate transfer abroad, whereas it also applies to simply maintaining personal data on a Web site that is accessible outside the European Economic Area.

The Table on page 165 gives an incorrect lifetime for database right, and fails to point out that database right and copyright can co-exist in the same database.

A surprising erorr was the claim that patents give the owner the right to manufacture and sell the patented product. Like all other IPR, patents give the owner the right to prevent third parties from making, using, selling or importing the invention without permission, and so is a negative right, not a positive right. There have been many cases where a patent is granted to company A which concerns an improvement to a method of making a product covered by a patent owned by company B. Company A cannot then make the product by the improved method without the permission of B.

The suggestion that one should apply to the USA for software patents is misleading, as a UKorganisation must always apply for a patent in the UK first. The authors claim the Prince versus Prince domain name dispute is continuing in the USA, but my understanding was that the plaintiffs dropped their US case after they lost their UK case. The Copyright Licensing Agency deals with more than just reprographic rights. The authors claim that 'infringement of copyright or trade mark in English law is a criminal offence'. Only limited types of infringement are criminal offences; the remainder are civil offences. Finally, too often US Court cases are referred to, without the caveat that there is no particular reason to assume that a UK Court would reach the same conclusion.

Missing items include no listings of reference or textbooks, such as Jay and Hamilton on data protection, Phillips' e commerce and IT Law Handbook (which complements this book excellently), and Van Dulken on searching patents. Unfortunately, no names of addresses of organisations referred to, such as the Software Publishers Association are provided. Sometimes alarmist throwaway lines are profferred without explanation; for example, the statement that BT has applied for a patent on hyperlinking and that BT could have a monopoly on this technology till 2006. Some explanation of the chances of BT's patent being upheld (which are very low) should have been provided. There is no discussion of Community Patents. The authors fail to mention that database right can be renewed indefinitely as long as the database has been updated during its 15 year current lifetime. The discussion on VAT does not cover the interesting question of whether delivery of a mixture of print and online information should be zero rated because books and other printed materials are zero rated.

5. Summary

This long list of quibbles is just that - quibbles. This is a sound book, which brings together a disparate range of issues an an impressive manner. However, the authors should work to ensure that the third edition (and surely there must be one) is made more businessman-friendly and should iron out some of the minor errors. That would turn a good book into an excellent one.


This Book Review was published on 2 July 2001.

Citation: Oppenheim C, 'Mobilizing the Information Society, by Robin Mansell and W. Edward Steinmuller', Book Review, 2001 (2) The Journal of Information, Law and Technology (JILT) <http://elj.warwick.ac.uk/jilt/01-2/oppenheim2.html>.New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/jilt/2001_2/oppenheim2/>.


 

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