Review of Lai, S, The
Protection of Computer
Software in the United Kingdom (Oxford: Hart, 2000)
Professor
Colin Tapper
Magdalen
College, University of
Oxford
1
The title of this work
is both too narrow and too wide. It
is
too narrow so far as it suggests that it is limited to the law of the
United
Kingdom since it is awash with reference to, and detail from, the law
of other
jurisdictions, predominantly that of the United States, nor does the
title do
justice to the illumination which the work sheds on contractual issues,
such as
the validity of shrink-wrap licensing.
It is too wide in that it suggests coverage of the whole
of the law of
copyright, when its precise focus is upon the law relating to
infringement. Thus
there is no discussion of authorship,
ownership, or term. Nor,
understandably
enough, are some surrounding and relevant areas such as patent or
unfair
competition described in any detail.
The work deserves evaluation for what it is, a detailed
examination of
some important areas of copyright in relation to computer programs,
considered
from an enlightened, and technically expert, point of view.
2.
The
author often adopts a robust attitude towards the sometimes
incompletely
thought out views of other commentators, or even judges. At times
however he
seems insufficiently sceptical in his own approach. Thus he accepts,
without
much critical discussion, the common view that because Altai
restricted the range of protectible material in a computer
program, it also restricted the degree of protection offered to the
program,
but this does not necessarily follow.
It is at least arguable, that the less that is
protectible, the more
likely it is that the lesser remaining portion will have been infringed
by part
of its having been copied.
3.
It
is often claimed that the speed of technological development exceeds
that of
the law, and that this creates problems.
This claim is highly misleading.
A more significant contrast is between the seamless
development of case
law, and the sudden lurches of legislative reaction.
This is exacerbated not only by the delays of lawyers in
appreciating technological development, but also by delays of
technologists in
appreciating legal development, which tends to precipitate new case law. This book provides an
interesting
illustration, in that perhaps the most significant developments since
it was
written relate much more to working out the implications of the
legislative
reaction to technological development by such measures as the Digital
Millennium Copyright Act (which arrived just in time to be mentioned in
the
book, but which deserves larger treatment), and the turmoil into which
it has
cast European and English legislative reactions.
4.
This
is a stimulating and largely well-written work.
It reflects its academic origin in the extremely helpful
way in
which it is organised both between, and within chapters. The reader is given a
strong indication of
what he is going to find, although there is still occasional
repetition, and at
the end of each chapter the reader is presented with a further summary
of what
it contained. The
material is extremely
well-handled, and makes a number of illuminating, and original points,
for
example in the helpful comparison between the look and feel of a
computer
program and of a motor car. Another
valuable insight is provided by pointing out that the protection of
preparatory
materials probably eliminates any need to protect screen displays as
such,
since they will very often appear in the former.
5.
The book is well produced but there are
a few blemishes in the form of typos, and the occasional date is
irritatingly
omitted from a reference to an article.
It is a very useful work, designed to be used as a
complement to some
more basic, prosaic and less committed, text.
Its author, and publisher, are to be congratulated.
