CD: Can you provide an overview of the major trends and developments to have emerged across the licensing landscape over the past 12 months? To what extent have any changes to licensing rules contributed to the number of disputes we have seen?
Burge: The licensing landscape has been changing over the last few years and the last 12 months have been no exception. There is an increase in user-centric licensing because users require access to software applications from their desk and also remotely via a variety of devices. In addition, there appears to be an increase in subscription licensing which provides licences as a service rather than goods. Software as a service can involve the major components of the software residing on the supplier’s servers as opposed to the user’s servers and being accessed through a generic piece of software such as a web browser. In that case, the user transfers the support function and responsibility for cyber security to the software provider which may in turn lead to disputes. As software is being provided as a ‘service’, the implied terms as to ‘goods’ under the SGA and SGSA do not apply and so there are no implied terms as to satisfactory quality of the software on that basis. However, there is a common law duty for services to be of satisfactory quality and reasonably fit for their purpose. There is also an implied term under the SGSA that the supplier carries out the services with reasonable care and skill so that should make little difference in practice. What will make a difference are the further laws and regulations.
Oct-Dec 2016 issue