I INTRODUCTION TO N T R INTRODUCTION TO O INFORMATION TECHNOLOGY LAw D U INFORMATION TECHNOLOGY LAw C Sixth Edition T I O N Sixth Edition David I. Bainbridge T O I N F Now in its sixth edition, Introduction to Information Technology Law O (formerly Introduction to Computer Law), provides a comprehensive R and accessible introduction to the law as it relates to information and M communications technology. Adopting a practical approach that places A T the law in the context of computer use, this book is highly suitable for I O undergraduate law students, non-specialist students and computer and N information professionals. T E Key features C l End of chapter summaries help students identify and draw together the main H N About the author points of each topic O David I. Bainbridge is l Multiple choice questions at the end of each chapter reinforce student learning L and understanding of each subject Professor of Intellectual O Property Law at Aston l Accompanied by a Companion Website at www.mylawchamber.co.uk/bainbridgeIT, G regular updates on major legal changes and web links to valuable online resources Y Business School, Aston University and an honorary l A new resource for lecturers is available with this edition and can be downloaded from L the Companion Website. The instructor’s manual contains answer plans for the extended A member at Hardwicke problem questions in the textbook, answer feedback on the multiple choice questions w Building, Lincoln’s Inn. in the book and photocopiable masters of diagrams in the book He has a background in New to this edition Engineering and Information Technology. The sixth edition has been bought completely up to date and includes the latest legal developments in this dynamic area of the law. It contains: Sixth l New chapters on Criminal Evidence and Forensics and Freedom of Information Edition l In-depth discussion of the implications of technological advances, including e-signatures and outsourcing l Extensive coverage of the Directive on Copyright and the Information Society and related B Statutory Instruments a l A new part introducing students to the professional and ethical context in which computer i use operates n b r i d g e David I. Bainbridge Additional student support and free updates for this book at www.mylawchamber.co.uk/bainbridgeIT www.pearson-books.com 9781405846660_06_COVER.indd 1 23/5/07 09:14:51 INIT_A01.QXP 20/6/07 14:02 Page i Introduction to Information Technology Law Visit the Introduction to Information Technology Law, sixth edition Companion Website at www.mylawchamber.co.uk/bainbridgeIT to find valuable student learning material including: • Weblinks to useful further resources online • Regular updates on major legal changes affecting the law INIT_A01.QXP 20/6/07 14:02 Page ii 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 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.pearsonedco.uk INIT_A01.QXP 20/6/07 14:02 Page iii Introduction to Information Technology Law Sixth Edition David Bainbridge BSc, LLB, PhD, C Eng, Chartered IT Professional, MBCS Professor of Intellectual Property Law, Aston Business School, Aston University Barrister, Honorary Member of Hardwicke Building, Lincoln’s Inn INIT_A01.QXP 20/6/07 14:02 Page iv Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 1990 as Computers and the Law Second edition published 1993 as Introduction to Computer Law Third edition published 1996 Fourth edition published 2000 Fifth edition published 2004 Sixth edition published 2008 © David Bainbridge 1990, 2004, 2008 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, photocopy- ing, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. 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. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Law Commission Reports are reproduced under the terms of the Click-Use Licence. ISBN: 978-1-4058-4666-0 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 1 11 10 09 08 Typeset in 10/12pt Minion by 3 Printed by Ashford Colour Press Ltd, Gosport The publisher’s policy is to use paper manufactured from sustainable forests. INIT_A01.QXP 20/6/07 14:02 Page v Brief contents Preface xvii Glossary of computer, information technology and legal terms xxi Abbreviations xxvii Table of cases xxix Table of statutes xxxviii 11 Introduction to information technology law 1 Part 1 Information technology and intellectual property 7 12 Overview of intellectual property rights 9 13 Basic principles of copyright 19 14 Copyright and computer programs 33 15 Database copyright and the database right 72 16 Computer-generated works 90 17 Copyright in the information society 97 18 The law of confidence 121 19 Patent law 135 10 Design law 162 11 Trade marks, passing off and malicious falsehood 179 12 Criminal offences and intellectual property 209 Part 2 Information technology contracts 219 13 Fundamentals of information technology contracts 221 14 Liability for defective hardware or software 240 15 Contracts for writing software 268 16 Licence agreements for ready-made software 298 17 Open source software licences 311 18 Website development contracts 318 19 Outsourcing contracts 327 20 Hardware contracts 339 Part 3 Electronic contracts and torts 355 21 Nature, content and formation of electronic contracts 357 22 Performance of electronic contracts and evidential aspects 374 23 Torts related to electronic information 383 24 Liability of information society service providers for illegal material 407 INIT_A01.QXP 20/6/07 14:02 Page vi vi Brief contents Part 4 Information and communications technology crime 417 25 Information and communications technology fraud 419 26 Unauthorised access to computer material 438 27 Unauthorised modification of computer programs or data 454 28 Computer pornography, harassment and incitement 468 29 Computer evidence and forensics 486 Part 5 Data protection and freedom of information 495 30 Introduction to data protection law 497 31 Data controllers and the Data Protection Act 1998 527 32 Data subjects’ rights 575 33 Freedom of information 596 34 Privacy in electronic communications 614 Part 6 Professional and social issues of information and communications technology 625 35 The computer professional 627 36 Privacy, freedom of expression and the impact of ICT on society 635 Selected bibliography 646 Answers to multiple choice questions 648 Index 650 INIT_A01.QXP 20/6/07 14:02 Page vii Contents Preface xvii Glossary of computer, information technology and legal terms xxi Abbreviations xxvii Table of cases xxix Table of statutes xxxviii 1 Introduction to information technology law 1 Part 1 Information technology and intellectual property 7 2 Overview of intellectual property rights 9 Introduction 9 Copyright law 9 The law of confidence 11 Patent law 11 Trade marks and passing off 12 The law relating to designs 13 Semiconductor Regulations 14 Summary 17 Self-test questions 17 3 Basic principles of copyr ight 19 Fundamentals 19 Copyright works 20 Owners and authors 20 Duration of copyright 21 The acts restricted by copyright 22 Infringement 23 Exceptions to infringement and the permitted acts 23 Secondary infringement and criminal offences 25 Remedies for infringement 25 Copy protection and electronic rights management information 28 Moral rights 28 Dealing with copyright 29 Summary 30 Self-test questions 31 INIT_A01.QXP 20/6/07 14:02 Page viii viii Contents 4 Copyright and computer programs 33 Introduction 33 Historical development of copyright for computer programs 31 Subsistence of copyright in computer programs 35 Preparatory design material for computer programs 38 Restricted acts for computer programs 38 Permitted acts for computer programs 58 Programming languages and instruction sets 63 Ownership, employees and freelance programmers 64 Open source software and copyright 68 Summary 69 Self-test questions 70 5 Database copyright and the database right 72 Introduction 72 Copyright databases in the UK before 1 January 1998 73 The US and the ‘sweat of the brow’ principle 73 Protection of databases in the UK and Europe 74 Copyright databases 76 The database right 78 Summary 87 Self-test questions 88 6 Computer-generated works 90 Introduction 90 Works created using a computer 91 Works created by a computer 91 Intermediate works 93 Summary 95 Self-test questions 95 7 Copyright in the information society 97 Introduction 97 The internet 98 Multimedia 106 Legal liability of internet service providers 108 Circumvention of ‘copy-protection’ 113 Electronic rights management information 118 Summary 118 Self-test questions 119 8 The law of confidence 121 Introduction 121 Basic requirements 122 INIT_A01.QXP 20/6/07 14:02 Page ix Contents ix Public interest and freedom of expression 130 Remedies for breach of confidence 130 Court orders and breach of confidence 131 Summary 132 Self-test questions 133 9 Patent law 135 Introduction 135 Basic considerations 136 Procedure 136 Basic requirements 139 Entitlement 143 Infringement 144 Defences and remedies 146 Software inventions 147 C o n Patent infringement and the internet 158 t e Summary 160 n t s Self-test questions 160 10 Design law 162 Introduction and background 162 Community design 163 UK registered designs 168 Computer-generated images and icons 168 The UK unregistered design right 170 Semiconductor topographies 173 Summary 176 Self-test questions 177 11 Trade marks, passing off and malicious falsehood 179 Introduction 179 Trade marks 180 Trade marks and the internet 190 Passing off 198 Malicious falsehood 204 Summary 205 Self-test questions 206 12 Criminal offences and intellectual property 209 Introduction 209 Copyright law 210 Trade mark offences 214 Other offences 215 Summary 216 Self-test questions 216