Clark, Eugene; Cho, George; Hoyle, Arthur --- "Editorial" [2000] JlLawInfoSci 10; (2000-2001) 11(2) Journal of Law, Information and Science 131

• EDITORIAL

EDITORIAL

This is the second of a two part series in the Journal of Law and Information Science, focusing on e-business/commerce issues. The guest editors are all members of the National Centre for Corporate Law & Policy Research, University of Canberra.

This second volume in this special edition focuses on commercial and intellectual property issues. The lead article, by Dr Kate Reid, formerly of Australia and now in the UK, examines the important area of risk management and internet commerce. In a world where supply chains can involve hundreds of firms operating across numerous country borders, contract law holds pride of place. This article will provide practitioners with some very useful analysis by which to guide their Internet commerce practice.

Uta Kohl, from the University of Wales, looks at the important area of remedies. As all practitioners know, proving liability is often pointless if the available remedies are inadequate. The new cross-jurisdictional digital environment is causing courts to re-examine their approach to such traditional remedies as damages and injunctions and Uta Kohl’s insightful and creative piece should give courts and practitioners much to think about.

The next four articles consider the issue of copyright in a digital age.

Dr Maree Sainsbury analyses the important and emerging issue of management of copyright in the digital age and the legislative response to the challenges which this has resulted in. In addition, the article goes further and looks at the remaining uncertainties including those associated with hyperlinking of sites (linking, deep linking and framing). It concludes with a valuable discussion of the particular legal problems posed by the growing and widespread use of multimedia

IP Lawyer, Phillip Mendes further explores digital copyright, but within the specific context of a university setting as universities increasingly offer their courses online.

University of Canberra Lecturer in Law Arthur Hoyle analyses the Napster case which has been much in the news and challenges traditional notions of copyright law and enforcement. The ‘Napster experience’ has resulted in a very different view being taken by both sides of the issue of freedom to copy what is published on the internet - those who wish to preserve their economic interests through application of the traditional Intellectual Property (IP) law and who have resorted to the courts for the full range of redress; and those who seek to subvert those interests from a political, economic or anarchic view and have sought to do so by exploiting the unsuitability of the present IP law, and copying almost at will. The result, and this is as unprecedented as the very issue before the courts, has been that, far from seeing one side victorious (and the law then decided in a relatively straightforward manner), the two sides have in fact each given ground, and a new digital paradigm has emerged. The paper examines whether the attempt to utilise the full range of IP law protection represented by the Napster action has failed, and whether in doing so, this has necessitated a thorough re-thinking of the whole issue, with the very real possibility that this will usher in a new and fundamentally different paradigm – one in which economic pragmatism overrides the exercise of legitimate legal IP rights.

In the final copyright article, Anne Fitzgerald and Christina Cifuentes, lawyers and academics, have contributed an article addressing the two stages of copyright protection for computer software. The article finds that in a series of cases, the Australian courts have made it clear that since copyright does not protect the function of software, it is not an infringement to replicate non-literal elements such as functionality, provided it is achieved with independently written code and without copying of the expression of the original program. However, limiting the scope of copyright protection in relation to literal copying of the program’s code has proven more difficult in the absence of a clear legislative direction to this effect. During the past year, the process of legislatively accommodating computer technology to copyright law has commenced, with the enactment of the Copyright Amendment (Computer Programs) Act 1999 (Cth) and the Copyright Amendment (Digital Agenda)Act 2000 (Cth). The article looks at the effects of these statutes in clarifying the application of copyright law to computer software, and introducing new exclusive rights and creating several exceptions to the exclusive rights of software copyright owners.

In the concluding article, Marlene Tucker, an ACT Lawyer and doctoral student at the University of Canberra investigates the legal and internet authority response to the problem created by an aspect of criminal activity on the internet. She finds that from its arcane beginnings as a tool for Government, the military and academia, and with the increasing popularity of the internet not only as a communication tool but as a tool for electronic business and commerce, problems and issues pertaining to allocation and protection of domain names have arisen. Cybersquatting and cyberpiracy are recent additions to the legal lexicon as a new category of crime. This paper makes a study of this new offence by presenting the legislation on the matter and some of the cases decided on the issue.

Eugene Clark, George Cho & Arthur Hoyle

University of Canberra 2001