Computer Law in the UK - Assignment Example

COMPUTER LAW Student’s Name Institution Presented To Date Q 1a (i) The engagement between the local freelance web developer and the company, in this context referred to as client, should be enforceable in a court of law. In this regard, the two parties to the contract should agree on terms and conditions by signing a web design contract. Such a contract will come in handy in protecting the rights and obligations of both parties as it covers both criminal and civil liabilities. However, it is important for both parties to have capacities to contract and as well the client must provide consideration. The two parties to the contract should have intent to create a legal engagement (Adlex Solicitors, 2011). In this regard, the website design contract should be in compliance to the provisions of UK’s Copyright, Deigns and patents Act of 1988. Reason being the freelance website developer may opt to retain rather than transfer ownership property rights to the client. Such rights are for instance ownership of tools and codes used in creating the website. Therefore, it may be important for the client to demand from transfer of ownership rights especially those that directly relate to his/her website. On the other hand, the client may request from ownership of exclusive rights restricting the freelance developer from future re-use of some of the website elements. It is therefore important for the website contract to identify measurable parameters in proportion to consideration agreed on between the two parties by stipulating functions, objectives, and functions of the website. Importantly, to avoid future problems in terms of website performance, there web development should be based on milestones which when achieved; some part of consideration is paid. On the other hand, full settlement of consideration requires to be based on Acceptance Testing which the developer will test the website functionality (Coleman, 1994). The relationship between the two parties is both legal and business in nature and therefore it is as well affected by Sale and Supply of Goods Act 1994 and Supply of Goods and Services Act 1982. Reason being the development of the websites qualifies as software and thus a service as per the aforementioned statutes. It is also worth noting that the registration of domain name requires being in the name of the client.in addition, it is necessary to entrust the codes and tools used in development of the website in an Escrow in order to avoid losses in case the developer goes bankrupt. Subsequently, the website design contract should have clauses as to what will be produced in terms of ownership rights and service delivery, indemnity, confidentiality, obligations of the client, and project management (warranty, maintenance and acceptance procedure) (Ibid, 1994). Q1a (ii) Implications of the legal issues in this situation and those that could arise out of the web design contract in respect to Statute and case Law. In UK, designs, logo, and names of website are covered extensively by the Trade Marks Act of 1994. In respect to this case study, unless otherwise agreed, the website development company is a legal entity and thus it is capable of owning property. Therefore, it is necessary for the client to demand transfer of ownership rights from the development company. In the same regard, the Intellectual property Law is entirely applicable in this case as it covers in the creation and ownership of copyright as well as rights and obligations of the owner. In addition, the creation of the website qualifies to be regarded as software and the developer may infringe copyrights of others during designing process. As such, the Copyright, Design, and Patents Act 1988 and the subsequent supplementary law Copyright (computer Programs) regulations 1992 comes in handy. In reference to these statutes, unless otherwise agreed based on terms and conditions of the contract, the developing company own the copyright. Therefore, the web development contract between the two parties should clarify this. Subsequently, the privacy and confidentiality of information disclosed to the developer and for posting onto the website is protected by UK’s Data Protection Act 1988. In this respect, it should be clear to both parties concerning non-disclosure of information without the authority of the client reference to Data Protection Act 1988 (Coleman, 1994). Q 1b Negotiation between the Web developer and the client According to the law of Contract, any mutual agreement between two parties who have capacities to contract creates rights and obligations that are enforceable in a court of law. As such, the engagement between the client and the developing company fits in well as contract involving the Sale of Goods and/or Services in varied contexts. The client in this case is the offer whereas the developer is the offeree. In this case the offeror proposes to the developer requesting for a website. The developer then turns to be the offeree in that he gives an offer client and upon agreement of both parties, the contract starts to take shape. However, to reach at a consensus and not lose the services of the developer, the client requires to be thoroughly prepared by having identified the developer’s need sin advance. Subsequently, because the negotiations are characterised by intention to create legal rights and obligations, the offer and acceptance from the basis of subsequent terms and conditions. It would be important for the client to set out clearly the design and functional elements that he/she requires. It is therefore, necessary for the initial negotiations to exclusively stipulate the service as well as performance expectations of both the client and the developer based on specific milestones. According to Turle and David (2008) there are five key elements that the client requires to consider. The first one entails the key deliverables of the web design contract between the two parties. This is in reference to the anticipation of the client out of developer’s work. This is for instance functional and design specifications, user interface requirements, operational flowcharts, documentation and training resources, code standards and requirements of ecommerce. The second important consideration is the time frame within which the website development will be completed in terms of specific milestones, testing and acceptance periods as well as payment timelines. Third consideration concerns intellectual property rights as required by Copyrights Designs and Patent Act 1988. By default, the developer of a software exclusively owns the Copyright unless under employment conditions. It would therefore be important for both parties to mutually agree on ownership of rights such as website codes and tools. Subsequently, the fourth consideration is the domain registration. Legally it is necessary for the client to secure registration of the domain in his/her own name. Fifth, both parties require to agree on the privacy and confidentiality of any data disclosed by the client to the developer and/or contained therein on the website. Also to be discussed during the negotiation process is liability and disclaimers which should be complemented by the inclusion of conditions and warranties in regard to the website performance. On the other hand, the period within which the contract between the two parties will be in existence is of importance. As such substantial performance should be necessary option to end the contract. The above considerations would come in handy to ensure that the client is sufficiently covered by law in order to avoid future problems (Turle & David, 2008). Q2. Legal protection of an invention Under the Copyright, Design and Patent Act of 1988, computer programs are regarded as literary works and thus legally regarded. On the other hand, the commercial venture of both the software is covered by Supply and Goods and Services Act 1992 whereas commercialization of the hardware is covered by both Misrepresentation Act 1967 and the Sales of Goods Act 1979. In the same regard, the Intellectual Property Law protects the invention of both the hardware and software. For instance, a case law determined that any software used a means to access data via a dynamic link has the capacity to be copyrighted. Reason being such an invention improves the speed and reliability of a computer functioning (Boon, 2009). This was ruled in a court case in which it was being argued whether or not Symbian application was patentable. In reference to Copyright, Designs and Patent Act 1988, the ownership of copyrights is vested in the employer and not the author in case of employment unless otherwise stated. Therefore, the departure of the computer technician does not grant him/her worship rights of the prototype. In this case, if the technician re-uses the former employer’s codes and tools while working for the competitor, this would result to infringement of IP rights. Therefore, the initial author of the prototype has exclusive rights and is as well eligible to seek damages from the computer technician in case of infringement. This is in line with the court’s rule in IBCOs Computers Ltd v Barclays Mercantile Highland Finance (1994) and Navitaire v Easyject. On the other hand, the author of the new electronic device and software while negotiation with the bank for loan, his invention may be used as a collateral security but it does not mean IP rights are transferred (Website-law.co.uk, 2011). Q3a Crime and the Court –Child Pornography All over the world, quite a number of countries have instituted legislations to restrict child pornography in any form. In UK, there is a strong legal framework, to deal with issues realting to internet based child pornography. One such statute law is criminal Justice and Public Order Act 1994 (CJPOA 1994) though it has of late been amended to include other robust clauses. In addition, Obscene Publications Act of 1954 and 1964 sections 1(1) and 1(2) respectively illegalizes possession, publication, ownership and/or control of obscene forms of medium (Akdeniz, 1997). In the same regard, CJPOA (1994) illegalizes the act by anyone to store pornographic material in an electronic database with the aim of transferring them electronically. This aforementioned law puts a lot of emphasis on internet child pornography because it is a form of child abuse contrary to the Protection of Children Act 1978. In this case study, the presence of obscene child pictures in the hard disk of the pop star is an offence. Reason being it is highly probable that the sexually explicit materials were to be availed in the internet with intent to be distributed and downloaded contrary provisions of CJPOA 1994. In this case study, the pop star may be prosecuted under section 84 (4) of CJPOA (1994). Although it was established through the data recovery process that the sexually explicit images may have been modified from legal images via computer software, CJPOA (1994) illegalizes such pseudo-photographs. Section 1 of the Act makes it an offence for person to create, take or be taken or allow sexually explicit pseudo photographs of children with the intention of distributing them. The influence that the pop star commands puts him/her in a better position to abuse children through the celebrity stature. Although it may not be easy to distinguish between real photographs and pseudo photographs, chances are high that they were later to be used in popularizing internet photography contrary to the statute law. On the other hand, Section 84, subsection 4 of the Act which amended section 160 of CJPOA (1998) illegitimates possession of pseudo photographs and any other sexually explicit materials containing children. A reference case law is the Birmingham case that involved Arnold and Fellows who had been charged under Protection of Children Act 1978, Obscene Publication Act 1959 and CJPOA 1994. The reason for their prosecution was storage of sexually explicit child pictures in a computer and which could be accessed via internet. A fellow was jailed for three years whereas Arnold was jailed for six months for being in possession and distribution of pornographic materials. The court ruled that the possesion of such obscene photographs amounts to child abuse. In consideration the above statutes and case laws, the pop star is entirely liable for being in possession of outlawed pornographic materials (Ibid, 1997). Q3b The Role of Expert Witness Being an expert witness in a court of law creates a legal liability in that it is a Supply of Services. Therefore, the influence by the expert witness leading to a false belief of evidence in a court of law is an offence punishable by law. The engagement between the lecturer and the plaintiff or defendant is a contract in reference to Supply of Goods and Services Act 1977. Professional ethics demand for high level of competency and honesty from an expert witness. In Folkes v. Chadd (1782 Doug KB 157) is a case in which the admissibility of an expert witness was determined. The court ruled that scientific ideas and options based on proven facts may be entertained in a court of law so as to reveal to the court scientific information outside its knowledge base (Jones, 2004). The same court ruling was held in R v. Turner 1975. In this regard, the lecturer has unique expertise in cryptography and thus qualifies to be an expert witness. However, the expert witness must avoid any instance in which his/her act of omission of commission may result in negligence or false representation. This is contrary to the Law of Tort in which he/she is entitled to exercising a duty of care and skill. Besides, Professional Standards of Care and Codes of Guidelines require an exercise of ethical standards. An illustrative case law is that of Professor Sir Roy Meadow in R v. Sally Clark. The expert evidence which was presented by the professor was proven wrong by other professionals leading to its dismissal. Because of this case, other court case in which the professor was involved in providing expert evidence was relooked into leading to his disqualification as an expert witness. As such, it is important for the lecturer to exercise standard duty of care and skill and just provide what he knows to his/her best of knowledge (Ibid, 2004). Bibliography Akdeniz, Y 1997, ‘Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach,’ In Edwards, L and Waelde, C Eds, Law and the Internet: Regulating Cyberspace, Hart Publishing, pp. 223-241. Adlex Solicitors 2011, ‘Internet law’, viewed 16 March, 2012, . Boon James 2009, ‘UK software patents – Get with the program’, Computer law & security review, vol. 25, pp. 367-371. Bosco, D Zappalà, A & Santtila, P 2010, ‘The admissibility of offender profiling in courtroom: A review of legal issues and court opinions’, International Journal of Law and Psychiatry, vol. 33, pp. 184–191. Coleman, A 1994, Intellectual Property Law, London: Longman Practitioners Series, pp. 195. Jones, R 2004, ‘Your day in court e the role of the expert witness’, Digital Investigation, vol. 1, pp. 273-278. Moles, R N 2007, ‘The Role and Function of the Expert Witness’, viewed 16 March, 2012, . Turle, M & David, K 2008, ‘Recent developments in the patentability of software in the UK’, computer law & security report, vol. 24, pp. 461-464. Website-law.co.uk 2011, ‘Online law resources’, viewed 16 March, 2012, . Read More