AustLII Home | Databases | WorldLII | Search | Feedback

Journal of Law, Information and Science

Journal of Law, Information and Science (JLIS)
You are here:  AustLII >> Databases >> Journal of Law, Information and Science >> 1993 >> [1993] JlLawInfoSci 13

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Editors --- "Reviews" [1993] JlLawInfoSci 13; (1993) 4(1) Journal of Law, Information and Science 181

BOOK REVIEWS

THE LAW OF ELECTRONIC TRANSFER FUNDS -
GLOBAL AND DOMESTIC WIRE TRANSFERS CASH PAYMENTS CONSUMER TRANSACTIONS

Benjamin Geva, Mathew Bender and Co. Publications (Contact Erin Breslin - Fax: 518-462-3788)

This one volume loose leaf service is an analysis of global money transfers, ranging across the board from business, to consumer and also domestic transfers. The publication is intended to be an extensive commentary on the vast area of electronic transfer funds. It is indeed a watershed in this area of law, as it is the first publication to attempt to break down the complexities of this area through the use of illustrations, diagrams and charts to illuminate the way that even the most complicated transfers are carried out. The author has also made use of "Practical hints" which illustrates the complicated material in simple terms to guide an attorney through the way that the law in this area operates so that he may apply these principles in practical situations. The book is also an excellent resource aid as the text contains a number of detailed appendices as well as a glossary of terms. The publication central focus point is legislation, with particular emphasis on the U.C.C. Article 4 A and the Electronic Fund Transfer Act (and Regulation E). Through this focus the writer has been able to give specific attention to regulations, circulars and fund transfer system rules.

Chapter one introduces the text, and summarises what the main emphasis of the work will be. By doing so it enables the reader to gain a grasp of the book before launching into the very detailed body of the publication. Chapter two of the work is the beginning of the more in depth analysis. This chapter deals with fund transfers. In particular it concentrates on Article 4A, which controls electronic fund transfers under the Uniform Commercial Code. There is particular analysis of acceptance, rejection and execution of funds transfers. This part of the work also deals with the liability of unauthorised payment orders, misreckonings in payment orders and acceptance, and damages for wrongfully carrying out and completing funds transfer.

The emphasis of chapter three is on CHIPS and Fedwire, which are the two forms of large-value wire-transfer systems which are used in the United States. This involves an analysis of the workings of the systems, and how the U.C.C. Article 4 A has affected each of these. Chapter 4 covers with International funds transfers. This involves an in depth analysis of global interbank transfers over the international transfer system of SWIFT. The chapter not only concentrates on the international system used in the United States, but by comparison also looks at large transfer systems in other nations. In particular the systems used in Canada, England, Japan and Switzerland.

The last two chapters deal with ACH transfers and consumer protection in electronic funds transfers respectively. The chapter on ACH transfers includes a comprehensive analysis of automated clearinghouse system. This is a very complicated system to explain, and yet the author has managed to do so through the use of illustrations, diagrams and charts which demonstrate the way that the computer-based nationwide operates as a counterpart to the check system. The most important element in this system is time, as delays restrict the ability of institutions and consumers to access the funds. Through the use of the clearing house large groups or batches of transactions can be processed at one time. These transactions are issued, to the clearing houses, where upon the accounts of the banks are electronically "settled". The last chapter deals with the Electronic Fund Transfer Act, which protects consumer rights and liabilities with regards to financial institutions. It specifically deals with regulation E which is the implementing part of the act and which provides that it will only apply to consumer checking or savings accounts.

As a practical guide this volume will be an invaluable edition to any practitioner who deal in this area of law. It is a comprehensive and understandable guide to the law in this area which is marketed towards those who need practical guidance. It is a must for anyone who has to wind their way through the quagmire that is the law of electronic funds transfers.

Review by Kim Baumeler, Associate Lecturer in Law, University of Tasmania

COMPUTER CONTRACTS: PRINCIPLES AND PRECEDENTS

Hughes, Gordon and Sharpe (Second Edition) Sydney, The Law Book Company, 1992, Looseleaf $A 275 plus cost of updates

This is an excellent book which belongs on the shelf of every legal practitioner who has anything to do with computer contracts.

The book is divided into four major parts.

Part 1, Chapter 1, presents a very useful legal commentary of express terms which are likely to be included in the major types of computer contracts . For example, the authors provide a very useful description of the key terms likely to be found in: contracts for the sale and maintenance of hardware; hardware lease agreements, licensing and maintenance of software, software development agreements, software escrow agreements, systems integration agreements, distribution agreements and outsourcing agreements. In recognition of the large role played by the government in the computer industry, this section also discusses the standard clauses contained in government contracts as set out in the Government Information Technology Conditions (GITC).

For each of the various types of computer contracts, Part I walks the reader through standard clauses, such as exemption clauses, prohibition on assignment, disputes, and so on. Not only is the discussion of these provisions clear and easy to follow, but the authors also provide excellent footnotes to relevant case law and articles which lead the reader to further detail should it be required. Practitioners will also appreciate the discussion of negotiation strategies. For example, under the discussion of software development agreements and the terms for payment, the authors write:

"Ideally, the software developer would prefer payment by instalments (for example monthly) which are to continue for an indefinite period until the project is completed. The monthly payment would be based upon time spent on the project during the preceding month, plus disbursements relating to such expenses as consultants, the use of materials, travelling expenses, and computer time. The customer, on the other hand, would generally prefer to make payment only at the completion of certain predefined stages of development.

Whilst payment for services actually rendered may seem the fairest solution, payment rights are a matter for negotiation in each case. either way, the agreement will usually contain time limits for the completion of development stages with the customer perhaps insisting upon interim written reports ." (at p. 571)

The increasingly important topic of implied terms is covered in Chapter 2 of Part I. Here the authors discuss the relevant provisions of the Trade Practices Act, Fair Trading Acts, Sale of Goods Acts and other legislation and common law provisions which are relevant to computer contracts. Again, reflecting the authors' obvious practical experience, readers are provided with a useful checklist of relevant law which might be applicable to particular types of computer contracts. For example, under software development agreements, the following entry is found (at p. 1042):

Software Development Agreement (possible supply of goods and/or services)

Trade Practices Act 1974 (Cth)

Consumer Transactions Act 1972 (SA)

Consumer Affairs Act 1970-84 (Qld)

Sale of Goods Act (NSW) Pt VIII (if software is sold to customer)

Goods Act 1958 (Vic) Part IV

Fair Trading Act 1987 (WA)

Consumer Affairs and Fair Trading Act 1990 (NT)

• uniform sale of goods legislation (if software is sold to customer)

Chapter 3 of Part I discusses the important topic of intellectual property issues, including copyright protection, Circuit Layouts Act 1989 (Cth), patent protection, trade secret protection, designs legislation, trade mark law, common law contract and tort actions and so on.

Chapter 4 examines the major remedies available to parties to computer contracts and chapter 5 looks at the very important topic of taxation issues as they apply to computer contracts. Here the authors present a very useful discussion of the relevant statutory provisions concerned with income tax, sales tax, stamp duty and customs duty.

Part 2 presents sample agreements of the various types of computer contracts, including hardware sale agreements, hardware maintenance agreements, software license agreements, service bureau batch agreements, facilities management agreements and hardware/.software distributorship agreements just to mention a few. For each type of contract the authors provide a Checklist of Key Clauses and a samples of such an agreement drafted from opposite sides of the fence. Thus, for a hardware sale agreement there is one example drafted from the standpoint of the supplier and another version more favourable to the customer. Under the entries for the Checklist of Key Clauses in a Hardware Sale Agreement are some of the following (at p. 3011):

•Equipment specifications

--is there a right of substitution or modification?

--if so, on what terms?

• Operating manuals

--are they incorporated?

--how many copies?

--is their adequacy warranted?

--will updates be supplied and if so, on what terms?

•Price

--is the price inclusive of taxes?

--can the price be varied and if so, in what circumstances and on what terms?

--is the exchange rate specified?

•Payment

--lump sum or instalments?

--is a penalty interest rate specified?

--is thee a right of repossession or some other right in the event of non-payment?

•Site preparation

--are site specifications to be provided by the Supplier?

--what are the Customer's responsibilities?

--is the site to be inspected by the Supplier before delivery?

--what are the consequences of inadequate site preparation?

•Pre-delivery testing

--is it a requirement?

--what are the test specifications?

--may the Customer observe the testing being carried out?

--can the Customer request additional testing?

Part 3 provides samples of government contracts and includes the details of the Government Information Technology Conditions which have been the focus of much recent discussion in computer and commercial law journals.

Finally, Part 4, treats the recent and expanding topic of electronic data interchange agreements in which standard transactions related to the supply of materials, purchasing, inventory and so on are carried out, not on paper, but between two computers and in a form which is immediately computer processable. The authors include a copy of the Model Electronic Data Interchange Agreement and an example is given of the use of EDI by the automotive industry.

In conclusion, this is an excellent and highly practical work which should prove to be a standard reference text for anyone dealing with computer contracts.

Review by Dr E. Eugene Clark, Senior Lecturer in Law, University of Tasmania.

THE WHOLE INTERNET USER’S GUIDE and CATALOG

by

Ed Krol O'Reilly & Associates, Inc., 1992, 400 Pages (Inc Index & Quick Reference card), US $24.95

The Internet is the world's largest “network of networks” and connects research and educational institutions nationally and internationally. Amid the estimated 14 million computers connected to the Internet, the keen researcher will be able to locate almost any required piece of information from among its staggeringly large and diverse resources. “The Whole Internet Users Guide” by Ed Krol provides a readily accessible and informative guide to any traveller who is beginning to explore the wealth of services offered throughout the Internet.

The book does not fall into the trap of delving too deeply into the depths of technical detail. Instead the book is aimed at people who wish to utilise the Internet for research purposes. The reader is not assumed to be a computer or network expert, though a willingness to exploit technology to assist in performing one’s job is necessary.

The first four chapters function as an introduction to the Internet. Here the author provides the obligatory description of the Internet, how it can be used and by whom. The author also discusses issues that are seldom addressed such as the legal and copyright implications of Internet and what is considered acceptable behaviour by its users.

After introducing the fundamental concepts of the Internet, the next four chapters move on to describe the basic tools for exploiting Internet resources: telnet, FTP, email and network news. The book does not fall into the trap of merely regurgitating UNIX manual pages. Instead the use of these tools is fleshed–out using clear examples. Common problems are addressed and useful (though otherwise obscure) aspects of these programs are highlighted. Krol describes how these tools can be best put to work rather than merely overviewing their functionality.

The author has chosen to tackle the diversity of Internet systems by basing his descriptions on UNIX tools. Given the high proportion of UNIX–based information providers on Internet this is a reasonable approach and most readers should experience little difficulty in applying the books examples to their own system. Other systems are described when they offer particularly noteworthy features or have significant limitations. For instance the restrictions imposed by IBM PC, Macintosh, VMS and IBM/VM file systems are discussed and several pages are devoted to the popular encoding and compression schemes used on UNIX, Mac and IBM platforms.

The following chapters deal with the more advanced tools available to Internet users including many that are only now gaining popularity and acceptance. These include gopher, WAIS and the World Wide Web. There are useful chapters devoted to how to locate persons or particular software using tools such as finger, whois and archie. Various other tools including R commands, chat and Internet fax also receive coverage. One of the final chapters covers how to handle the common problems that may occur when communicating over Internet.

Krol rounds off his book with a guide to some of the resources offered on the Internet. The numerous topic areas covered include agriculture, law, music, education, cooking, libraries, medicine and many more. All the information described in these sections may be accessed using the tools and techniques outlined in the previous sections of the book.

Such a compilation of sources, while useful, could never hope to be complete and is prone to rapid obsolescence. However the thrust of the book is to provide the reader with strategies to locate the information that he or she requires. To this end the resource catalog serves as a useful incentive to investigate the diverse range of topics covered by documents scattered over the Internet.

The appendices cover how to obtain a connection to the Internet and detail the differing features supported by the various service providers. Not all countries connected to Internet offer the same facilities and the limitations of each countries link is overviewed. The book concludes with a useful glossary, index and a quick reference card that summarises the commands of the common network tools.

This book attempts to arm the researcher with the knowledge and techniques of how to most effectively utilise the growing range of services offered on the Internet. For somebody new to the Internet it should prove an indispensable guide to the use and purpose of the network and its resources. For the more advanced user there are chapters on new software tools and techniques for fully utilising the more familiar programs. Highly recommended.

Reviewed by Peter A. Jones, Computing Systems Officer, University of Tasmania.

INTERNATIONAL COMPUTER LAW

by

J.A. Keustermans & I.M. Arckens

Mathew Bender and Co. Publications (Contact Erin Breslin - Fax 518 462 3788)

The cover to this looseleaf text describes it as a practical guide to the International Distribution and Protection of Software and Integrated Circuits. The volume more than adequately fulfils this objective.

The volume is divided into six Parts. Part 1 deals with the technological background and provides a useful summary for persons not familiar with computer terminology. This part, combined with the glossary, is a welcome introduction to what can be complex area of law.

Part II deals with general legal issues in International Distribution of Software and Integrated Circuits. There is a detailed discussion on export controls with particular emphasis on the position in the United States. The chapter on import issues concentrates on the basic principles pertaining to government action against predatory pricing and subsidies by foreign governments. Special attention is given to the United States and the European Community. An overview is then given of the antitrust laws in the United States, the European Communities and Japan. This part concludes with a chapter on international taxation.

Part III considers the International Protection of Software. The various methods of the protection of proprietary interests in computer software, such as the criminal law, patent, trademark, copyright and trade secret laws are discussed. The national copyright protection systems of over 50 countries is also briefly analysed. Furthermore the primary clauses in the international copyright conventions, such as the Universal Copyright Convention, the Berne Convention and the Buenos Aires Convention are analysed. Particular attention is given to the protection of software by copyright.

Part IV is titled International Protection of Integrated Circuits. Closely examined is the Semiconductor Chip Protection Act of 1984 (US), the European Community Council Directive on the Legal Protection of Topographies of Semiconductor Products as well as the Japanese provisions. Consideration is also given the protection in 11 other countries.

Part V contains sample agreements for international software contracts. This, for the practising solicitor and business person is extremely important.

Part VI looks at the area of the protection of privacy. International regulations in this area such as the Council of Europe Convention, the O.E.C.D. guidelines and the EEC policy are discussed. There is no doubt that this area has become increasingly important as society has moved from an industrial based society to an information based community.

For any person working in this area this volume is essential. It provides a summary of the basic principles in this area as well as directing the reader to more detailed articles and texts. Furthermore the very extensive appendix and detailed bibliography are an excellent resource aid. The referencing throughout this volume is of a high standard. Overall this volume can only be highly recommended.

Review by Lynden Griggs, Lecutrer in Law, University of Tasmania.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/1993/13.html