AustLII Home | Databases | WorldLII | Search | Feedback

Journal of Law, Information and Science

Journal of Law, Information and Science (JLIS)
You are here:  AustLII >> Databases >> Journal of Law, Information and Science >> 2001 >> [2001] JlLawInfoSci 1

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Stokes, Michael --- "Editorial" [2001] JlLawInfoSci 1; (2001) 12(1) Journal of Law, Information and Science 5

Editorial

This issue of the JLIS consists of papers delivered at the International Conference on Information Technology and the Emerging Law at the University of Wollongong, 27-8 September, 2001. The first paper, ‘An Argument against Business Method Patents’ argues that recent developments in the United States giving patent protection to business methods are an unwarranted extension of patent law. It is wrong in principle because it gives protection to computer software which is both too obvious and too abstract to warrant protection and is likely to dampen rather than encourage innovation because it protects existing monopolies and prevents the incremental improvements which have been a feature of software development.

The second paper, ‘Issues of Privacy, Confidentiality and Access in Electronic Health Records’, considers problems raised by the proliferation of electronic data bases containing information about the health of the general public. As computerised medical records are integrated among health care institutions, data can be accessed from different places by different users, increasing the risk of invasion of privacy. Misuse of patient data may harm patients and undermine the quality of health care. Hence, before any integrated health record system is established, we need to decide who owns the information and who should be allowed access to it. The paper proposes solutions to some of these problems looking at issues such as consent, disclosure, medical research, access control, children’s records, mandatory reporting, employer access, marketing and disposal of records against the background of privacy and other legislation.

Simone Hill’s article looks at when email contracts are formed. The Electronic Transction Act 1999 (Comm) lays down that an electronic communication is received when it enters the recipient’s computer. However, it does not stipulate when an electronic contract is formed. Hill considers two options; the contract is formed when the offeror receives notice of the offeree’s acceptance and when the offeree sends the acceptance (the postal acceptance rule.) Although there are some similarities between email and ordinary mail, she concludes that there is no reason for applying the postal acceptance rule to email. Unlike the ordinary mail, email is close to instantaneous and the offeree does not lose control of the message on sending. On the contrary, the sender is in the best position to know whether the message was received. Hence it is best to apply the standard rule that the contract is formed when the offeror receives notice of the offeree’s acceptance.

Intelligent software agents provide a means of retrieving information off the internet, filtering out unwanted information and tailoring it to the needs of the human user. However, their use raises a number of legal problems and can impose liability on the user. In their paper, Hui Yang and Minjie Zhang deal with some of the legal questions to which the use of intelligent agents give rise. Their paper first examines the various kinds of agents before considering the legal concerns and in particular the increased risk of liability to which the use of agents gives rise. Finally, they discuss a security framework which is designed to ensure that an agent is not only efficient but that it does not expose the user to legal liability.

In ‘Content and Copyright in the Digital Age’, Adam Simpson examines the ways in which the digital age is different and how that affects the law of contracts. First, digital equipment allows cheap high quality copying, makes it easy to modify digitally stored material and has created the expectation that digital material should be free of charge. The Australian government has reacted to the new environment by extending the law of copyright to give the copyright owner a right to control communication of copyright material and by giving the authors of copyright material moral rights. The author argues that the growth of digital technologies will lead to an increase rather than a decline in copyright protection with the right to communicate becoming the most valuable right. New forms of contract will play an important role in enabling the exploitation of these rights. Some of these are examined and traps for copyright owners are considered.

Universities have taken to the internet as a way of delivering their courses to students who are unable to attend the campus. These include students studying offshore in developing countries as well as those in Australia. ‘Equity Issues in Education’ deals with the equity issues to which the use of the internet by universities gives rise. It argues that universities have given little consideration to the equity issues to which on line education gives rise. These relate to access and to the content of the courses themselves. The paper warns that unless universities pay more attention to these issues, they may be sued by dissatisfied students.

A firewall is a system for limiting access from one network to another and is a major method of protecting an internal network from outside threats. Firewalls can also be used to prevent misuse of the network by internal users. ‘Design and implementation of a Content Filtering Firewall’ proposes a method of adding a content filtering function to a firewall and touches on the legal and ethical implications of so doing. It also considers an attack on a firewall combining JAVA Applet and XML to penetrate a content filtering firewall and considers the need to have a content access policy to determine different content filtering for different user groups such as staff and students at a university.

The ease with which digital media can be copied may lead to a proliferation of copyright infringement. ‘Digital Watermarks for Copyright Protection’ proposes a technical solution to the problem, digital watermarking. Digital watermarking embeds a hidden signal into the host data which can be used in a variety of ways to prevent or deter copyright infringement. After explaining how digital watermarking works, the article considers its effectiveness as a means of preventing and deterring copyright violations and of providing evidence of illegal copying. It considers some of the problems with watermarking, including that of inversion attack before examining how web spiders could be used to search the internet for illegal watermarked copies of material. The article also deals with possible abuses of watermarking which could be used to frame innocent purchasers or to enable invasions of privacy and considers some possible safeguards to prevent these abuses. Watermarking is not a cure all for problems of illegal copying and the authors point out its limitations. For example, it cannot be used to detect imitation rather than direct copying and can only be used where there is space in the copyright material in which to insert it. Hence the article considers alternatives such as registration of copyright material which is more tamper proof and more discerning than a watermark..

‘Can I Take It With Me When I Go? Who Owns Online Courseware?’ deals with a subject close to every academic’s heart, ownership of online course materials. Traditionally, academics have owned the copyright in the course materials which they create. However, because online materials exist as a product which can be bought and sold, universities are claiming that they should own them as they provide the facilities which make online learning possible. The article applies basic principles of copyright to the ownership of course materials before looking at the problems which arise from the conversion of learning into a marketable product, including the separation of students from the experts who created the materials and the infringement of academic freedom as institutional goals come to prevail over those of the individual academic. The article argues that agreements between academics and institutions which reward the creators of courseware while providing incentives for institutions to provide the necessary facilities and infrastructure are the best way of resolving the conflicting claims. These agreements need to deal with ownership, moral rights and financial matters.

Software engineering research has concentrated on the needs of mammoth enterprises involved in very large projects rather than on the needs of the small to medium sized enterprises which do the bulk of software development. Much software is produced in ways which involve substantial risk of failure but is critical to the success of the enterprise which uses it, so that software failure can lead to substantial losses to the user. As a result, small to medium software companies run the risk of major litigation. ‘Why don’t We teach Software Engineers about the Law?’ suggests that to enable software engineers to recognise and manage these legal risks, they should be taught some law and especially about legal risks in a more general subject about managing risk.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/2001/1.html