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COMPUTER LAW DA Introduction to Computer Law Explains the Law Clearly and Makes It Accessible to a Wide Audience

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COMPUTER LAW DA Introduction to Computer Law Explains the Law Clearly and Makes It Accessible to a Wide Audience Bainbridge a/w_ppr 31/03/2005 02:35 PM Page 1 Fifth DAVID BAINBRIDGE Edition DAVID BAINBRIDGE INTRODUCTION TO COMPUTER LAW INTRODUCTION TO COMPUTER DA Introduction to Computer Law explains the law clearly and makes it accessible to a wide audience. In this fifth edition, the law within the key areas of intellectual property rights, contract, tort, criminal law and data protection has been comprehensively updated, expanded and rewritten to VID BAINBRIDGE reflect technological change, new decisions and new European and UK legislation. The emphasis is on describing and examining the law in the context of the practicalities of computer use. Features of the fifth edition include: Introduction to • a new part on electronic contracts and torts • a new chapter on website development contracts • a new section on trade marks and the internet COMPUTER LAW • expanded coverage of many areas such as defamation on the internet • the role of intermediaries such as internet service providers with regard to illegally transmitted material Fifth Edition • developments in computer crime including pornography and grooming in chat rooms, harassment via e-mail and piracy offences • important developments in data protection and human rights law including the Michael Douglas v Hello! Ltd and Naomi Campbell v Mirror Group Newspapers plc cases • substantially updated and revised to take full account of new and modified legislation and case law in the UK and elsewhere • easily accessible tables of cases and legislation including EC legislation, conventions and agreements • website www.booksites.net/bainbridge, which provides an essential online update service. Introduction to Computer Law is suitable for undergraduate and professional students taking modules in the subject, and will also be invaluable to managers, computer professionals and legal practitioners. David I. Bainbridge is a barrister, chartered civil engineer and member of the British Computer Society. He is currently Professor of Business Law at Aston University, where he teaches information technology law, intellectual property law and law of e-commerce. His industrial experience includes professional and consultancy services in information technology law, construction management and software development for the construction industry. He has carried out research into the implications of the European Community data protection Directive for the European Commission and is widely published in the academic and professional fields. By the same author Intellectual Property 5th edition - 0 582 47314 4 Cases and Materials on Intellectual Property 2nd edition - 0 273 63556 5 Use the online resources for this book at www.pearson-books.com Free updating service for this book www.booksites.net/bainbridge at www.booksites.net/bainbridge Introduction to Computer Law We work with leading authors to develop the strongest educational materials in law, bringing cutting-edge thinking and best learning practice to a global market. Under a range of well-known imprints, including Pearson Longman, we craft high quality print and electronic publications which help readers to understand and apply their content, whether studying or at work. To find out more about the complete range of our publishing, please visit us on the world wide web at: www.pearsoned.co.uk Free updating service for this book at www.booksites.net/ Introduction to Computer Law Fifth Edition David Bainbridge Professor of Business Law, Aston Business School, Aston University, Barrister, BSc, LLB, PhD, C Eng, MBCS, MICE Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies around the world Visit us on the world wide web at www.pearsoned.co.uk ____________________________ First published in Great Britain as Computers and the Law in 1990 Second edition published in 1993 Third edition published under the Pitman Publishing imprint in 1996 Fourth edition published under the Longman imprint in 2000 Fifth edition published in 2004 Copyright © David Bainbridge 1990, 2004 The right of David Bainbridge to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without either the prior written permission of the Publishers or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, 90 Tottenham Court Road, London W1T 4LP. All trademarks used herein are the property of their respective owners. The use of any trademark in this text does not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such trademarks imply any affiliation with or endorsement of this book by such owners. ISBN 0 582 47365 9 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library 10 9 8 7 6 5 4 3 2 09 08 07 06 05 Typeset in 10/12.5 pt Sabon by 3 Printed in Great Britain by Henry Ling Ltd, at the Dorset Press, Dorchester, Dorset The publisher’s policy is to use paper manufactured from sustainable forests. Contents Preface xiii Table of cases xv Table of legislation xxiv Glossary of computer and legal terms xxxvi Civil procedure terminology xlii Abbreviations xliii 1Introduction 1 Part One COMPUTERS AND INTELLECTUAL PROPERTY 7 2Overview of intellectual property rights 9 Introduction 9 Copyright law 9 Patent law 10 The law of confidence 11 The law relating to designs 11 Trade marks and passing off 12 Semiconductor Regulations 13 3 Copyright basics 15 Fundamentals 15 Infringement 17 Remedies for infringement 18 Moral rights 21 Dealing with copyright 22 4 Computer software and copyright 24 Introduction 24 Computer programs 25 Originality and storage 26 Preparatory and ancillary materials 27 Restricted acts for computer programs 28 Exceptions to copyright infringement 43 Employees and freelance programmers 47 Programming languages and instruction sets 50 Devices to overcome copy-protection 51 Implications of software copyright law 52 5 Copyright and databases 54 Introduction 54 v Contents Copyright in a database before 1 January 1998 55 The United States and the ‘sweat of the brow’ principle 56 Protection of databases on or after 1 January 1998 56 Database structure 66 6 Computer-generated works 68 Introduction 68 Works created using a computer 69 Works created by a computer 69 Intermediate works 71 7 Copyright and electronic publishing 74 Introduction 74 What is electronic publishing? 75 Multimedia 75 The Internet 77 Licensing 81 Special copyright problems posed by electronic publishing 83 The future 91 8 Copyright in the information society 93 Introduction 93 The European Directive 93 Proposed changes to the Copyright, Designs and Patents Act 1988 98 Summary 98 9The law of confidence 100 Introduction 100 Basic requirements 101 Public interest defence 107 Remedies for breach of confidence 108 Court orders and breach of confidence 109 Summary 110 10 Patent law 111 Introduction 111 Basic considerations 111 Procedure 112 Basic requirements 115 Exclusions from patentability 118 Computer programs 119 Infringement 126 Defences and remedies 131 Miscellaneous provisions 132 Utility model 132 Summary 133 11 Trade marks and passing off 135 Trade marks 135 Trade marks and the Internet 143 vi Contents Passing off 149 Trade libel 155 12 Designs 157 Introduction and background 157 Registered designs 159 Community design 161 Computer-generated images and icons 162 The design right 164 13 Semiconductor products 168 Introduction 168 Semiconductor design right 168 Subsistence and ownership 170 Duration 171 Rights and infringement 172 Remedies for infringement 173 Summary 173 14 International implications and summary 174 International implications 174 European Community law and intellectual property 176 Summary 180 Practical suggestions 181 Part Two COMPUTER CONTRACTS 185 15 Introduction to computer contracts 187 16 Fundamentals of computer contracts 190 Terms of the contract 190 Entire agreement 192 Nature of the contract 193 Software acquisition 196 Hardware acquisition 199 Breach of contract 200 Misrepresentation 204 Summary 205 17 Liability for defective hardware and software 207 Introduction 207 Negligence 208 Negligence and RSI 210 Negligent misstatement 212 Product liability 217 Criminal liability for defective products 219 Exemption clauses 220 vii Contents 18 Contracts for writing software 235 Introduction 235 Definitions 235 Licence agreement 236 Assignment of agreement 237 The contract price 240 Specification 242 Time for completion 245 Maintenance of and enhancements to the software 246 Escrow 248 Copyright and other intellectual property rights 250 Warranties and indemnities 251 Liability 252 Arbitration 253 Alternative dispute resolution 254 Other terms 256 Independent professional supervision 257 Is there a contract? 258 19 Licence agreements for ‘off-the-shelf’ software 262 Introduction 262 Shrink-wrap licences 266 Web-wrap licences 267 Typical terms in licences for off-the-shelf software 268 Misrepresentation and dealers’ promises 269 Back-up copies of programs 270 Integration and upgrades 271 Training and support 271 20 Website development contracts 272 Introduction 272 Specification 272 Terms 274 Maintenance 277 Domain name, etc. 278 Summary 279 21 Hardware contracts 280 Introduction 280 Performance 280 Representations and entire
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