History is littered with examples of the law being slow to catch up with the use of technology.
Two recent cases on software copyright and website hyperlinks have shown just how long it can take for legal principles to catch up.
Software isn’t exactly a new phenomenon and you might have thought that it would be clear by now what constitutes permissible copying of a software program.
But the wheels of justice turn slowly. Although computer programs were brought within the scope of copyright protection by Act of Parliament in 1988, there’s no actual legal definition of a computer program.
Last year, an English judge accepted that it’s not copyright infringement merely to copy the functionality of a software program.
But even then the court fudged key issues around the protectability of interfaces and other parts of a program.
In May 2012, the European Court of Justice finally ruled that the copyright afforded to computer programs does not protect the functionality of a computer program, its programming language or the format of data files used in it.
Further, if you lawfully possess a copy of a computer program under licence, you can study its functioning to determine the ideas underlying it.
Websites and hyperlinks are a more recent phenomena, but the social media explosion has opened up many legal claims.
One particularly vexing question for the courts has been what liability a company has if its own website links to a site which is defamatory.
It seems that the operator of the originating website could still be liable for postings on the hyperlinked website.
The case which triggered this ruling involved postings on a website to which Richard Dawkins’ foundation linked.
Even though the linked, US-based, website was outside the UK court’s jurisdiction, because users were directed to the foreign website without any notification of redirection, the court accepted that the operator of the originating website could be liable for potentially defamatory statements made elsewhere.
This point serves as a reminder of a couple of things.
Firstly, a company whose website links to external sites should be wary of incurring liability for what happens on the linked site. In such circumstances, it would be prudent to make it clear to users when they are being redirected to a website belonging either to a third party or another group company.
Secondly and more broadly, the UK – as with other countries around the world – is having to think fast to apply legal norms to rapidly evolving communications technologies and practices.
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