Alternative Law Journal
edited by A. Fitzgerald, B. Fitzgerald, P. Cook, C. Cifuentes; Prospect
Media Pfy Ltd, 1998; $145.
Internet porn, hyperlinks, 'virtual' cash, coded messages, borderless transactions- can the law cope? This 'Report' provides a useful analysis. It is a collection of contributions on various legal issues affecting electronic commerce, multimedia and the internet. Contributors are from a variety of backgrounds, including legal and technological academics, as well as members of the legal and patent professions.
The target audience is not simply legal professionals, but anyone involved in developing and using information technologies. Its aim is to illuminate the commercial and legal factors impacting on the evolution of the new information economy.
The contents are extensive, covering numerous issues including copyright protection for web sites and multimedia works, international developments, patent and other intellectual property rights relevant to e-commerce and Internet software; domain names and trademarks; electronic banking and contracting; liability for on-line activities; defamation and privacy.
There is a refreshingly practical assessment of web site copyright issues by Andrew Christie. Mindful of the frustrations confronted by members of the public trying to understand the inter action of complex laws with complex technologies, he seeks to provide a 'desirable' state of mind and a 'rule of thumb for behaviour'. While he proceeds to analyse the technical infringement possibilities, he encourages 'pragmatic' web site creators not to worry too much about 'legal niceties',
but rather to make a commercial judgment.
John Swinson (Mallesons Stephen Jacques) provides a useful snapshot of current e-commerce patent developments. David Webber (Davies Collison Cave) provides some more detailed analysis of developments in Australian software patents. For those who might not have been aware of the explosive growth of software patents over the last decade the tabled statistics are illuminating, if not frightening. It will be interesting to see the end commercial results of the plethora of such exclusive rights. There are currently many lobby groups arguing against the 'anti-competitive' effects of software patents (see for example <http://freepatents.org/> ).
Presentation is fairly basic but clear and relatively approachable. Most contributors make good use of sub headings and questions and try to make the material (which can get a bit esoteric) as accessible as possible for relatively uninformed readers. It is highly textual-but there is some use of tables and diagrams (particularly in the explanation of Internet banking transactions). I think the publication would have benefited from some more visual elements to assist explanation - for instance in relation to explanation of Internet linking and framing concepts.
Of course, it is not in electronic form -and so has dated rapidly (as no doubt will this review). Since publication there has been a flurry of related legislative activity, including the Draft Electronic Transactions Bill 1999, Exposure draft of the Copyright Amendment (Digital Agenda) Bill 1999, Copyright Amendment (Computer Programs) Bill 1999 and the Broadcasting Services Amendment (Online Services) Bil/1999.
We have also seen, among many other developments:
• the faltering commercial steps of the Digicash eCash scheme referred to in the Internet banking commentary (DigiCash Inc. filed for Chapter 11 Reorganization in the US); and
• revised internet naming policies (including the final World Intellectual Property Organisation Report on the Internet Corporation for Assigned Names and Numbers(3May 1999)).
This rapid evolution and its consequent effects on the currency of the commentary are unavoidable. How ever, most of the contributions in the report address the issues and the policies behind these reforms and so continue to be of value. The report also provides a useful snapshot of how things were at one point in time - something that the fluidity (and impermanence) of the digital environment does not always lend itself to.
The introduction portrays 'the law' as a key social regulator that has the potential to both enable and constrain the adoption of new technologies. However, it recognises the difficulties of 'the law' regulating the rapidly changing and borderless environment of the internet. The law (like other social institutions) is struggling to keep up with the brave new worlds being opened up by such technologies (and others like genetic modification). Most of these developments are being driven by what is technically possible and commercially attractive, not in accordance with any reasoned and imposed social model of what behaviours should be permissible (or even which should be 'enabled'). We are moving into an 'out of control' era subject to unpredictable interactions and rapid evolution, where the quickly expanding nature of what is possible is forcing us to confront the hard questions of what we want to do and what we 'should' do. This makes for healthy but difficult thinking -while the world rushes by (regardless?).
This text, apart from being a good general guide, is a useful starting point in that thinking process. It only occasionally gets bogged down in detailed and dry explanations of technical and legal issues. For the most part there is a commendable effort to keep the material accessible. There are many basic summaries of key issues for users and developers to bear in mind-almost at 'information sheet level'. A more formalised two tier level of information (summary and full body) might be a useful model for a future publication of a similar nature. Providing these online would also be a useful supplement to the text - but such ventures are of course even more problematic to keep up to date!
In summary, a useful read in what is an ever changing and complex area.
Robert Chalmers is Senior Associate, Norman Waterhouse, and teaches law at the University of Adelaide.