Diane Rowland and Elizabeth Macdonald's

Information Technology Law

Cavendish , 1998, £29.95
395pp, ISBN: 1-85941-225-4

Reviewed by
Euan Cameron
De Montfort University, Leicester
[email protected]

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This is a Book Review published on 30 June 1998.

Citation: Cameron E, 'Diane Rowland and Elizabeth Macdonald's Information Technology Law', Book Review, 1998 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/bookrev/98_2came/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_2/cameron/>.

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1. Introduction

In their preface the authors state that one of the main impetuses for writing this book is the absence of a suitable casebook in the area. Further it is suggested that there is a difficulty in respect of ready accessibility to a sufficiently wide variety of materials in a new and expanding area of the law. However rather than a straightforward cases and materials book, they have chosen to produce that hybrid form of law text - the materials and commentary book. As a format this type of text has produced some powerful examples in other fields of the law; although the exact mix can vary from balancing large extracts with small commentaries to the opposite situation of much text combined with pithy quotations from the materials. In the former guise they compete with the standard casebooks whereas in the latter case the best of them can offer an alternative approach to the standard text. They have an advantage over the conventional text in that they can use the opinions of Judges, reports and articles to focus in upon specific issues, and the contexts in which they operate, without being hidebound by the need to be comprehensive - without the need to seek a totally coherent presentation of an entire subject. The downside is that lack of comprehensiveness. With textbook writers who quote materials extensively and commentators whose extracts are short the boundary between the various styles can be narrow indeed.

The present work varies in the exact balance of text to materials as the context requires . The extracts seem much longer in the context of Intellectual Property than, say, in the context of contract. On balance however, it seems to me that the book tends towards the 'commentary' end of the spectrum rather than the 'casebook' end. I am not sure that this was the authors' intention as suggested by their introduction, but it may therefore be in competing with the several available textbooks rather than in the comparatively under-populated area of casebooks on IT Law. I would also say that to the present reviewer the book seems at its strongest in those areas where the authors are commenting to the greatest extent. Their commentary is sharp, to the point, good at raising debate and stimulating in suggesting possible resolutions.

Their commentary is also good in pointing to a very wide variety of sources. The authors provide a good starting point for further investigation of issues covered. The range of material referred to in footnotes etc. is wide ranging and impressive. Perhaps there is a bit of an irony here in the light of the objective reported above. For ,as a generality, it seems to me that most of the materials actually extracted are relatively readily available in the libraries of the institutions at which the target audience of undergraduates and postgraduates will be studying. This is certainly true if one includes electronic media such as LEXIS. The extracts include a fair quantity of British statutory and caselaw material as well as official European documents and articles from the Anglo-American tradition.

2. Structure

The book is divided into two sections: first, 'the challenges of computer software', which is I suggest self-explanatory, and secondly, 'the challenges of computer technology' which is perhaps less so. The second section considers data and information and the issues arising from the increased capacity of information technology to process, hold and transfer such data and information, including the explosion inherent in that simple word - the 'Internet'. There is thus nothing specific to hardware issues. The approach is thematic and this is emphasised in the chapter titles within each section. Within the software section (Section A) there are two chapters entitled respectively protecting- and exploiting- rights in software - the first deals with intellectual property rights and the second with contract protection -, and two entitled defective software - the first dealing with contractual liability and the second with product liability. Section B has chapters on Electronic Data Interchange, Protecting the Private Individual, Policing 'Cyberspace' and evidential issues. Such an approach cannot be taken to extremes but basically does work. For example, I confess that at first sight it seemed 'odd' to have the discussion of computer crime placed entirely within the 'Cyberspace' context. However on reflection, it does seem that many of the 'classic' computer crimes - hacking, introducing viruses, fraudulent interference with money transfers etc. - do occur on-line; But not all - for example, criminal damage through interfering with data or introducing a virus can occur without the assistance of the Internet. Sensibly, the scheme does not prevent the authors from dealing with the bulk of criminal issues in the one place. On the other hand one wonders if the emphasis on software in Section A, and hence the decision to deal with copyright in that context, is a reason for not dealing with copyright in the results of using programs e.g. databases and multimedia rights. Of course the 'thematic' chapter headings do disguise more traditional subject descriptions. Thus chapter 2 (intellectual property) is essentially about copyright and patents, and chapter 7 (Protecting the Private Individual) is mainly about Data Protection with some additional discussion of issues of defamation. By contrast, traditional contract concerns are spread across three chapters and copyright across two.

The exact mix of topics within an Information Technology Law text - especially one such as this which does not purport to be comprehensive - is always a matter of judgement. Some would chose to include elements of Telecommunications Law although I am quite happy without it! A case could also be made nowadays be made for including some discussion of trade marks in the context of the Internet - both as the subject of cross border disputes and in respect of the currently fashionable issue of the trade marking of domain names. Personally, I would have included some discussion of confidentiality and employment within the industry. However, as stated above, there is a coherence to the choice of topics and there are no glaring omissions. These are matters of preference not criticism.

Within the topics chosen there are some discernible differences of approach. For example, the copyright sections involve some of the main U.S. cases whereas that dealing with patents does not. Of course this is understandable in that our legislation is derived from the European Patent Convention (EPC) which explicitly excludes program patents whereas in the U.S. system the same issues are raised implicitly. Nevertheless discussion in that context from the U.S. does illustrate and illuminate the nature of the policy arguments underlying the apparent exclusion of computer programs from patenting under the EPC. Again there is a difference in the approach to the basics of the substantive areas of law considered. It is of course always a difficulty in 'applied' areas of law to decide whether to give an exposition of the underlying substantive law or to assume pre existing knowledge. This becomes especially true in areas which are little litigated in the computer field but where there has been much speculation as to the impact of Information Technology. Here the decision has been to include for example a fair amount of basic detail in contract fields such as the Unfair Contracts Terms Act but not, for example, in Intellectual Property.

3. Conclusion

Much of this review has been describing the balance of approaches taken and, maybe, suggesting that there is some degree of inconsistency in the approach to the individual topics. However the melding together of extracts and commentary is done well throughout the book to produce a readable whole. The extracts are well chosen to illustrate the points raised. The style is one of presenting two sides of an argument with comparatively little indication of the preferred arguments. There was thus little scope for this reviewer to take issue with the opinions of the authors. Thus the real issue as to the use of the book comes down to its nature. For, I would suggest that it is a successful foray into this type of presentation. It will undoubtedly be useful as bringing together a number of points of controversy and as a starting point for further reading. But there are inevitable limitations as to the size and quantity of extracts which can be fitted into such a text.

I suggested in my introduction that this work is closer to the textbook end of the spectrum of commentary books than the cases and material style. Thus it will be for the recommender of texts to adjudge whether this style of work, in which many of the ideas are expressed by way of extracts from cases and other sources, is to be preferred to the various standard Computer / Information Technology / Internet Law texts which seem to be coming off the presses with ever greater frequency.