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JILT 1997 (2) - Tom Guthrie

David Bainbridge's

Introduction to Computer Law (3rd ed)

Pitman Publishing, 1996. £22.99
xxvii + 355p. ISBN:0-273-61940-3

Reviewed by
Tom Guthrie
Glasgow University
gubx02@udcf.gla.ac.uk

Contents

1. Introduction
2. Presentation
3. Comments

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This is a Book Review published on 30 June 1997.

Citation: Guthrie T, 'David Bainbridge's Introduction to Computer Law (3rd ed)', Book Review, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/bookrev/97_2guth/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/guthrie/>


1. Introduction

This text sets out to provide a guide to all aspects of law relating to computers for the non-lawyer. It is divided up into four parts. Part One deals with the full range of intellectual property and related rights that may be relevant. Part Two looks at computer contracts, focusing in particular on the practicalities and the sorts of terms that should be included in such contracts, whether for hardware or software. The discussion is clear and, as in the rest of the text, is assisted by diagrams, charts and checklists. Part Three is concerned with computer related crime, concentrating on the Computer Misuse Act 1990, but also looking at the application of other crimes to computers and at the criminal offences created by intellectual property statutes. The final part discusses data protection an, in particular, examines the Data Protection Directive.

2. Presentation

The presentation throughout is generally clear and straightforward, avoiding legalisms and presenting the material clearly. Because of the lack of decided case law in this area, there are a number of occasions on which Bainbridge is forced to speculate as to the view the courts would take. One example is the approach to copyright and the internet, where the decision in the Shetland Times case echoes some of the points he makes. Overall, despite the criticisms and comments which follow, it is an accessible and user friendly text. The breadth of coverage inevitably gives rise to some problems, the need to deal with the vast areas of law briefly leads to some problems. Some of these problems are minor inaccuracies or cases where the text may not give the whole picture, others are cases where fields which might profitably have been included are excluded and one is the more general problem, which affects all texts of this sort, in dealing with the different jurisdictions inside the United Kingdom.

3. Comments

Minor inaccuracies first. One example of this is the discussion of comparative advertising which, it is said, 'was introduced by the 1938 Act [The trade Marks Act 1938]' (103) This is a rather curious conclusion given that the general effect of the 1938 Act was to prevent comparative advertising when it involved a trade mark (e.g. Chanel Ltd v Triton Packaging Ltd [1993] RPC 32). No mention is made of the liberalisation of this in the Trade Marks Act 1994 which now permits more widespread use of comparative claims (see Barclays Bank plc vRBS Advanta [1996] RPC 307). A second is in the discussion of passing off, into which a discussion of character merchandising intrudes. It is not quite cleat what this discussion is doing here since it is of no clear relevance to the central theme of the text, but it does rather reinforce the outdated view that a 'common field of activity' is necessary in passing off and focuses on one of the older cases at the expense of the more recent (and to merchandisers more favourable) decision in Mirage Studios v Counter Feat Clothing, which featured the now rather passé Mutant hero Turtles. A final example is the discussion of breach of confidence. It is not made clear that there need be no special relationship between the source of the information and the person disclosing for this remedy to be available. There is, perhaps oddly, no discussion of the Spycatcher cases which made it clear that third parties could be caught by the obligation of confidence if the confidential nature of the information was clear.

This last example perhaps falls into the category of missing the whole picture, and there are one or two others. More could, I think, have been said about technical effect, though it is true that the case law in this area is not a model of clarity. More could also have been said about the potential liability of internet service providers for copyright infringement, since there had been a number of cases in the United States prior to publication of the book.

The major problem with this text is the way it deals with the different jurisdictions within the UK. This is not unique to this text, it must be said, and it simply illustrates the general tendency to write texts based on English law and include some general statement as to differences in other parts of the UK. There must be a question as to how adequate this is in texts for non-lawyers. Lawyers can be expected to be able to go and research the law more fully to confirm that it is as stated and may have some general notions about differences within the UK. This is not necessarily something that can be expected of the non-legal reader who may not have limited knowledge and understanding his/her own legal system.

It is suggested in the Preface that:

Much of the content of this book is of general application throughout the United Kingdom but it should be noted that there are some differences between Scottish law and the law of England and Wales, particularly with regard to contracts and evidence. (xii)

Some similar warnings are found at later stages but, in general, it is not made clear what the differences are and which parts of the text can be considered as reliable statements of the legal position in Scotland. One example of this is the discussion of the prosecution of criminal offences which refers to the Crown Prosecution Services and to Magistrates and Crown Courts without any suggestion that this is relevant only south of the border.

Despite the disclaimer, there is some discussion of the separate position in Scotland. It is discussed, for example, in the context of breach of contract, drawing a distinction between the English and Scottish approaches. This separate treatment re-emerges later when it is noted that the Civil Evidence Act 1968 doesn't apply in Scotland which 'has its own..much simpler rules of evidence'(219). No further enlightenment is offered as to what these might be. More detailed mentions of the separate Scottish position occur in the context of the Data Protection Act 1984 (particularly the prosecution for offences, perhaps leading an unsuspecting reader to conclude that this Act involved a separate system of prosecution to other crimes). Even here, though, the treatment is not uniform, readers are advised that compensation claims under the Act go to the County Court or to the High Court, with no mention that anyone seeking to claim compensation in the High Court in Scotland would get short shrift.

These points about the differences between the legal systems in the UK and the failure to flag them up consistently is not made from a narrowly nationalist point of view, nor can they be made only about this text. The failure to identify relevant and significant differences detracts from the usefulness of the text throughout the UK - readers are left in doubt as to whether what they are reading has general application or whether it is restricted to one or other jurisdiction.

These criticisms should not detract from the basic virtues of the book: its clarity of expression in an area of complexity and, in particular, the practical guidance on matters such a contracts and contract terms.

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