Legal protection and the new technologies : a need for reform

Abstract

In the past 30 years information processing technology, principally in the form of computers and communication networks, has revolutionised virtually every aspect of human existence. This technology has developed at such a pace that science has tended to outpace the law, which has become outdated and ill-suited to its purpose. Temporary and short-sighted remedies have resulted. In this paper the relevant technologies will be reviewed, as will the underlying basis for legal protection. The problem of finding adequate legal protection for these new technologies is then examined with a particular emphasis on the differing types of legal protection currently employed. The shortcomings of these forms of protection are noted. A comparative review of protection afforded to computer programs is then made. Specific reference is made to the current situation in New Zealand in terms of the Copyright Act 1962 along with a review of the options adopted in the United Kingdom and Australia. An analysis of the options for reform is then made. At the outset the basic criteria for reform are stated and the proposition made that an entirely new approach is needed if New Zealand is to escape the "technology trap". Against this backdrop the thesis is developed that copyright law in particular is ill-suited and inappropriate as a means for legal protection for industrially applied articles, including computer software. It is proposed that a new direction, rather than an adaption or extension of the old, is needed. In doing so specific areas of difficulty in current law are considered as are the international ramifications of the proposal. Finally, the 1990 Ministry of Commerce discussion papers are reviewed in the light of these proposals. Proposals for reform are made. It is argued that the solution lies in providing a new statutory regime based broadly on the principle of unjust enrichment or unlawful misappropriation. That is, a regime which specifically provides a sanction against the copying of utilitarian/industrially applied articles where the copier has not used an "appropriate effort"; such a concept being defined as a situation where the copier obtains an unfair and unwarranted commercial advantage over the creator of the work. Two basic alternatives are put forward. The first is that a broad statutory tort of "unfair competition" be introduced by amending the Fair Trading Act. The second is that an all-encompassing statutory tort be introduced by way of new legislation. The case is made that such a body of law would be certain, fair, effective and most significantly adaptable to change. Importantly, it would also strike the appropriate balance between pragmatism and principle.