Going Digital 2000

AUTHOR:   Anne Fitzgerald, Brian Fitzgerald, Cristina Cifuentes and Peter Cook (eds)

PUBLISHER:          Prospect Media Pty Ltd

ISBN:                    1 86316 150 3

PRICE:                  Softcover:  $175

This is the second edition of a work on legal issues for e-commerce, software and the Internet. Because of technological and statutory developments that have occurred since the first edition was published in 1998, it has been necessary to update substantially the chapters of that edition, to provide a more comprehensive coverage of legal issues and to expand the treatment of the rapidly growing environment of e-commerce.

The book opens with the amazing statistics showing the rapid acceptance of the Internet by Australia's adult population. Since the first edition was published it is estimated that 41% of Australia's total adult population have accessed the Internet at least once and 32% are now accessing it at least once a week. Most interesting from the point of view of legal practice is the growth of the use of the Internet to purchase or order goods or services for private use. Although this is still only 5% of Australian adults, its projected expansion brings in its train a remarkable variety of new legal problems.

This is not a work of deep philosophy. One gets the impression that there is no time for that. Things are happening too fast. This is therefore a book for busy legal practitioners aimed to brief them on the statutory and common law rules applicable in Australia to the information society. Perhaps because of the continental size of their country and the long established telecommunications infrastructure, Australians are and for a long time have been, hooked on information technology. This is a book on a growth area for lawyers.

Going Digital 2000 is divided into three parts. Each reflects a special theme. Part 1 contains chapters which focus on intellectual property issues. Part 2 has chapters discussing e-commerce issues. Part 3 comprises chapters about liability issues. All of these are introduced by a first chapter written by Associate Professor Brian Fitzgerald of Southern Cross University. This chapter the reader in the technological picture. It adopts the judicial definition of the Internet appearing in ACLU v Reno 929 F Supp 824 at 830 (1996). It then proceeds to describe in general terms the international agencies that are trying to develop consistent principles for regulating global electronic transactions followed by the Australian law that responds to the impact of the new technology on established legal rules. A special value of this book is its up to dateness. Several of the chapters deal with new federal legislation such as the Computer Copyright (Amendments) Computer Programmes Act 1999 (Cth), Electronic Transactions Act 1999 (Cth), Broadcasting Services Amendment (Online Services) Act 1999 (Cth) and the Copyright Amendment (Digital Agenda) Bill 1999. The last is still working its way through the federal Parliament. Anyone who ventures in this area on the basis of law school notes or "gut feelings" runs the risk of providing inaccurate legal advice and facing a professional liability suit.

Of special note in the first section on Intellectual Property issues is a chapter on the use of indigenous cultural materials written by Maroochy Barambah and Ade Kukoyi. The authors note that "in a highly computerised setting ... the speed at which songs, paintings or other form of Aboriginal culture or material can be accessed, down-loaded and used, largely without any form of commission or monetary compensation, is frightening". Cultural protocols are proposed which industry professionals and musical practitioners should follow to avoid costly litigation of the kind that has already reached Australian courts.

Two of the editors, Anne Fitzgerald and Cristina Cifuentes combine to tackle one of the most difficult topics of digital law. Their chapter pegs out the boundaries (as they put it) of computer software copyright. They trace amendments to the statute which followed the Apple case in 1984 and then scrutinise the amendments contained in the Computer Programmes Act and the Digital Agenda Bill. Their conclusions raise the policy question of whether Australian law should follow the "fair use" provision found in s 107 of the United States Copyright Act.

The way in which the book is targeted at practising lawyers may be demonstrated by reference to Michael Lean's chapter on Copyright Clearances. This sets out to provide a practical guide designed on how clients may minimise legal risk. But the chapter emphasises the many practical difficulties involved in "going digital". They are difficulties for users of the technology and for the lawyers who must often sort out the consequences.

Going Digital 2000 contains many tributes to the capacity of the English language to adapt to new problems by inventing new words involving new concepts. Phillip Hourigan, in an essay on Domain Name and Trademark Disputes in Australia explains what is meant by "cybersquatting". In a later chapter about liability issues, Patrick Quirk examines defamation on the Internet and the responses that can be taken to so-called "corporate cybersmear".

The second section of the book on e-commerce issues follows the same practical focus. Andrea Beatty introduces the reader to "Internet banking, digital cash and stored value smart cards". Necessarily, this chapter is written without the benefit of much current Australian law on e-commerce. The author offers advice on how this legal deficit might be overcome by "carefully drafted contracts to protect [clients'] rights and those of their consumers". Naturally enough, one of the questions which must be given primacy is that of jurisdiction. This is because of the tendency of e-commerce to be national or even global, rather than local in its facilities. The writing in this section gets down to the detail of taxes and stamp duty, evidence law and the impact of the Electronic Transactions Act 1999. Other chapters in this section examine the problem of digital signatures (Adrian McCullagh), privacy (Patrick Gunning), taxation (Danny Fischer) and consumer protection (Beth Finch).

The last section of the book examines a number of liability issues presented by other developments in informatics. They include the chapter on defamation already mentioned, one on Internet service provider liability (Brian Fitzgerald), another on censorship and the regulation of Internet content (Peter Coroneos). Whether the Online Services Act will be successful in imposing Australian standards on a global technology remains to be seen. In the past, the influence of the First Amendment of the United States Constitution has been felt around the world by force of the sheer dominance of US commercial interests in publishing. The Internet carries many of the same portents.

Just when we all thought the bogeyman of Y2K was behind us, three chapters examine data interchange, network interfaces and difficulties which may still arise when significant software failures occur from technological defects. Amongst these closing chapters is one by Leif Gamertsfelder which discusses legal liability for electronic data recognition defects. One consequence of the Y2K scare was that it forced legislators, legal practitioners, systems developers and consumers around the world to address the issues of liability for defective IT products and to take action to minimise legal risk. The author examines the application of the Trade Practices Act 1974 (Cth) and State and Territory Fair Trading counterparts for liability in this area.

The book contains an outstanding index, an excellent glossary and good introductory material. It is published in A4 size format. Whilst, like most readers, I prefer a book of smaller more manageable size, doubtless this format is the result of cost factors. Everything is changing so quickly in this area of technology and law that frequent editions must take priority over elegant publications. This said, the cover picture of a cyberspace eye is a haunting reminder of the dynamic interface between quizzical humanity and its technological servants.

Readers who watched the recent television series on the universe will have seen the suggestion that the human species is a kind of essential intelligence for Space. Without us, the Big Bang would have happened. The planets, stars and galaxies would have existed. But no one would, at least in our solar system, have known. Perhaps digital technology is a kind of evolutionary leap that takes the intelligence of our species to a new dimension and expands its capacities to the very edge of the universe. If this is so, it is a humbling question to ask whether legal imagination can keep up with such changes. That is the question which this book tries to answer in thoroughly practical and lawyerly ways. For those in the field, and those who see its potential for lawyering in Australia, it is essential reading.