|
Welcome
Welcome to the JISC Legal newsletter covering what's been happening in January 2011.
It has been a busy month and JISC Legal has been out and about supporting OER projects as well as continuing to support the establishment of IDRAS, the Improving Dispute Resolution Advisory Service.
Look out for more Digital Media & Copyright guidance as experts from JISC Legal and JISC Digital Media will once again be combining to produce this popular seminar, to be held in Glasgow on 9 February and London on 9 March 2011. If you have questions about any legal issues to do with digital content, or if you are unsure about permissions for the use of films or music in teaching and learning then JISC Legal can be of assistance.
We continue to keep a close eye on sector needs, and have been preparing guidance in relation to legal aspects of cloud computing, and those in relation to outsourcing and mergers which will be available shortly.
Our Virtual Users Group will be up and running very soon and actively providing feedback on our activities as well as helping us to evaluate and focus our materials for publication. As a user we welcome your feedback too and if you feel there’s a need not being covered, please let us know – details at http://www.jisclegal.ac.uk/ContactUs/FeedbackForm.aspx.
As with previous newsletters, this newsletter has three sections:
- Legal News Digest for FE and HE
- New JISC Legal Publications
- Upcoming JISC Legal Events
For up to the minute news, our full range of publications, our events diary and our three-day turnaround legal enquiry service, visit our website at www.jisclegal.ac.uk. Details of what's on offer from JISC Advance can be found at: http://www.jiscadvance.ac.uk/.
News
In light of Data Protection Day, the Information Commissioner’s Office has re-launched this popular guidance document offering tips on how to protect personal data online. In addition, the leaflet sets out individuals' rights to access and correct information held about them by organisations. The guidance will prove useful to staff or students at institutions who want information on how to protect their personal information online. For access to the guidance document please refer to: http://www.ico.gov.uk/~/media/documents/library/Data_Protection/Practical_application/personal_information_toolkit.ashx.
A Statutory Instrument has been set out on costs sharing for rights holders and ISPs in implementing the Digital Economy Act (DEA). The progress of the DEA through both Houses of Parliament has come as a surprise to some considering BT and TalkTalk have been granted Judicial review of the DEA for apparent non-compatibility with EU law. The Statutory Instrument (SI) sets out the arrangements for rights holders and ISPs to share the costs for implementing the notification and appeals process for alleged copyright infringing ISP subscribers. The outcomes of the SI being debated in Parliament and theJudicial review could have implications for colleges and universities. More information is available here: http://www.thinkbroadband.com/news/4546-legislation-progresses-on-cost-sharing-set-out-in-the-digital-economy-act.html.
The House of Commons Science and Technology Committee has published its Report following Reviews into the University of East Anglia’s Climatic Research Unit’s E-mails. The Report states that the issue of how FOI legislation should be applied to scientific research is confused and needs to be resolved as a matter of urgency. The Committee would like clear guidance on the application of FOI to research by the start of the Sept 2011 academic year. Meantime some useful information for those in universities and colleges involved in this area is JISC's Freedom of Information and Research Data: Questions and Answers, written by Andrew Charlesworth and Chris Rusbridge, available at www.jisc.ac.uk/foiresearchdata.
The above House of Commons Science and Technology Report is available at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmsctech/444/444.pdf
The Cloud Industry Forum (CIF) has launched a Code of Practice for cloud service providers. The Code of Practice aims to promote standards of transparency, capability and accountability for all aspects of cloud computing service provision. Cloud providers can sign up to the Code through annual self certification underpinned by spot checks. Areas for audit include disclosure of information, contractual terms, software licences and information security to name a few. This quality assurance scheme will be useful for colleges and universities when comparing cloud providers and the standards of service they offer. For more information or how to sign up to the Code, see here: http://www.cloudindustryforum.org/index.php?option=com_content&view=article&id=43&Itemid=35
The IPO has announced this competition to provide additional awards of funds to encourage and support projects which show innovative ways of managing intellectual property. The competition is aimed at Higher Education Institutions and Public Sector Research Establishments and has a total prize fund of £ 500,000, which will be awarded between a minimum of twelve different projects up to a maximum individual award of £ 100,000. They particularly welcome proposals which have potential for a wider impact in the management of IP and knowledge exchange. Proposals must be received by 14 February 2011 - fuller information and details of how to apply can be found on the IPO's website at http://www.ipo.gov.uk/fastforward.htm.
The High Court in England recently clarified the meaning of the term ‘making available’ to the public under the Copyright, Designs and Patents Act 1988 and the Copyright and Rights in Databases Regulations 1997. In particular the court focused on the issue of making available to the public via online transmission which was pertinent to the case in question. The court ruled that the act of making available happened only where the transmission took place, rather than reception. For colleges and universities, this may have implications as to where an action can be brought by them or against them in relation to a "communication to the public" copyright infringement claim. For more information please refer to: http://www.twobirds.com/English/News/Articles/Pages/Making_available_over_internet_occurs_jurisdiction_where_servers_based.Aspx.
JISC is funding a support project on IPR and licensing issues for Open Educational Resources. The latest additional resource is a marriage of copyright and licensing expertise to help users understand and do copyright and licensing better. The new tool - the Risk Management Calculator – is designed to help understand levels of risk associated with publishing open educational materials. Typical examples of this might include materials which are still in copyright, but for which the rights holders cannot be traced or are unknown (so called “Orphan Works”). The calculator helps those relatively new to licensing to make the right decisions when creating open content. Further details of the resource can be accessed on the JISC website at - http://www.jisc.ac.uk/news/stories/2011/01/calculator.aspx.
In an Israeli court case this month, Avi Re’uveni v. Mapa inc., the user of Creative Commons (CC) licensed photographs was found to have infringed copyright by creating and selling collages using those images without complying with the CC BY-NC-ND licence's conditions. In this instance, no attribution was given, this use was commercial, and was a derivative work. Further and higher education institutions should ensure their staff understand that whilst CC licences provide useful, relatively liberal permissions, they do not represent a free-for-all, and non-compliance with the licence conditions will make reuse unlawful (with consequent risk and uncertainty). For more information, visit the summary of the decision at http://creativecommons.org/weblog/entry/26115.
The Equality and Human Rights Commission has published (12 Jan 2011) its latest guidance for public authorities on the new public sector equality duty which comes into force on 6 April 2011. The guidance covers what public authorities should do to meet the duty. This includes steps that are legally required, as well as recommended actions. There will be separate guidance for authorities with devolved functions in Scotland and Wales at a later date. The full press release and a link to the guidance is available athttp://www.equalityhumanrights.com/advice-and-guidance/public-sector-duties/
Those that use Facebook for teaching and learning will be keen to know that the company is to make changes to ensure that users only share information when they intend to do so. Plans to allow external websites to see users' addresses and mobile phone numbers by default have been put on "temporary hold". Learners should be encouraged to use its dashboard which is designed to simplify privacy settings. Currently users decide what level of access to grant various applications that they are signed up for and have to actively grant permission to any applications or sites that want to access their home address or phone number. Further details of the story can be found on the BBC website at - http://www.bbc.co.uk/news/technology-12214628
The European Commission has announced a consultation on the Commission report on the enforcement of intellectual property rights. The consultation aims to gain the views of other European institutions, the Member States and private stakeholders on the application of the Directive. The findings of the report look at the success and impact of the Directive since its introduction in 2004. This is an opportunity for the European law to be brought up to date and improvements made particularly surrounding difficulties in harmonisation between Member States on adopting IP enforcement measures. The potential consequences of changes to UK and EU IP enforcement law could have on FE and HE institutions is still unclear. The consultation will end on the 31st of March 2011. For more information to have your say, see here: http://ec.europa.eu/internal_market/consultations/2011/intellectual_property_rights_en.htm
The Information Commissioner’s Office (ICO) has published a set of top tips on freedom of information designed to help communications professionals in public authorities including FE and HE institutions consider freedom of information as part of their communications strategy. The tips include addressing the need to keep on top of requests coming in to an organisation to see if it is worth making the most requested information readily available online. Offering help and advice to journalists making freedom of information requests is also covered. The FOI tips for communications professionals can be found on the ICO’s website at - http://www.ico.gov.uk/~/media/documents/library/Freedom_of_Information/Practical_application/foi_tips_for_communications_professionals.ashx.
The Article 29 Working Party, an independent European advisory body on data protection and privacy, which is made up of the member states, has produced guidance detailing which member state’s law applies when gathering or processing data. The guidance was produced to offer clarity in relation to the Data Protection Directive 95/46/EC and the way it identified whose law applied to data processing. In particular the guidance says the Directive does not consider where a data controller is based but refers to where an establishment of that controller is based. This may prove problematic where data controllers have more than one establishment in many countries. FE and HE institutions, in their role as data controllers, may find this guidance useful and may wish to refer to the opinion at: http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp179_en.pdf.
JISC recently funded six records management related projects which used the JISC infoNet Impact Calculator in projects including email management improvements and implementation of a retention schedule. The outcomes from the pilots are varying and interesting for university and college management and show the cost and savings as well as return on investment which improvements in practice may bring. In addition good records management practice will assist legal compliance in all areas including data protection and freedom of information.Further information including the final reports of the projects and the Impact Calculator are available from the Jisc infoNet website athttp://www.jiscinfonet.ac.uk/records-management/measuring-impact/impact-calculator/pilots
The British Library has made available three million records from the British National Bibliography under a Creative Commons CC0 public domain licence. The BNB has been keeping records of publishing activity in the UK and Ireland since 1950, and the newly-released information has been issued under a CC0 waiver making it freely available for reuse and adaptation. As well as demonstrating the power of Creative Commons licences, these may also provide a useful resource for the academic world. For more details, visit http://creativecommons.org/weblog/entry/24973, and for more information on Creative Commons licensing and open educational resources, visit http://www.jisclegal.ac.uk/Projects/OERIPRSupport.aspx.
The UK government is set to extend freedom of information legislation to cover hundreds more organisations, including UCAS, the higher education admissions service, in the forthcoming FOI Act. The Act may help universities and colleges, as round-robin FOI enquiries regarding admissions may end up with UCAS rather than each institution. For more detail, visit http://www.bbc.co.uk/news/uk-politics-12124095.
A coalition of American TV networks have won an injunction against a UK company which was streaming their content through its own website. Fox, CBS, ABC and NBC sued FilmOn.com, which was retransmitting their programmes, as they believe it to be in breach of copyright law. The court has granted the TV companies a temporary restraining order pending a full judgment. Although this case is being heard under US law, a similar case is to be heard later this year in the UK. Colleges and universities should be aware that retransmission of broadcasts is likely to be a copyright restricted activity, and that the ERA licences are unlikely to permit such activity. For more detail on this story, visit http://paidcontent.org/article/419-filmon-shut-down-by-judges-order/.
The High Court has ruled that the Independent Safeguarding Authority are acting in breach of human rights law by imposing automatic bans on employees with criminal convictions or cautions. The ISA was set up by the Safeguarding Vulnerable Groups Act 2006, in order to vet those who were seeking to or likely to work with children or vulnerable adults, and the legislation allowed it to bar anyone from such work for periods of between one and ten years if they had been found guilty of, or admitted to, relevant criminal offences. However, in response to a challenge from the Royal College of Nursing, the court ruled that imposing such bans without allowing those affected to make representations was contrary to the European Convention on Human Rights. Accordingly, it is expected that the government will have to make changes to the system, which will have implications for colleges, universities, and all organisations whose staff require vetting from the ISA. For furtherinformation, visit http://www.civilsociety.co.uk/finance/news/content/7819/high_court_rules_vetting_and_barring_scheme_breaches_human_rights, and for more on e-safety,visit http://www.jisclegal.ac.uk/Themes/eSafety.aspx.
A recent decision of the Information Tribunal gives some guidance on the use of s.43 of the Freedom of Information Act 2000 in relation to conflicts between disclosure and confidentiality following an FOI request. The Department of Work and Pensions had argued that revealing certain information in relation to its commercial contracts would reveal trade secrets as well as compromising its ability to get maximum value in future tenders. The Tribunal rejected this argument except in relation to a bidder's financial model (as it was confidential in nature, and its inclusion aided scrutiny in the public interest) and certain details relating to the location and specification of its data centre (on security grounds). Colleges and universities should continue to make clear to potential contractors the FOI consequences of bidding and contracting, but may be able to justify non-disclosure using s.43 FOIA 2000 in relation to confidential pricing models where inclusion assists scrutiny, and also in relation to details with security implications. For more on the story and a link to the decision, visit http://www.mms.co.uk/MMSKnowledge/email-news.aspx?pageid=53834#3, and for more information on FOI duties and exceptions, visit http://www.jisclegal.ac.uk/LegalAreas/FreedomofInformation.aspx.
The European Union and the US have published a website designed to make it easier to find resources related to intellectual property rights. The TransAtlantic IPR Portal has been launched with the aim of helping businesses – particularly small and medium-sized enterprises (SMEs) – protect and enforce their intellectual property rights in foreign markets around the world. The site is available here - http://ec.europa.eu/enterprise/initiatives/ipr/index_en.htm.
More than 70% of UK employees admitted to data theft in a recent survey, which also revealed that many companies have insufficient safeguards in place to prevent it. The survey of 1,000 employees, conducted by security firm Imperva, found that information theft took many forms, and often occurred as a result of widespread ignorance about the law, with many employees believing they were entitled to act as they did. The survey highlights the need for colleges and universities to ensure they have both adequate safeguards on their data security, and clear policies in place regarding data protection. For more information on the story, visit http://www.computerweekly.com/Articles/2010/11/22/244021/Analysis-UK-companies-fail-to-plug-biggest-data-leaks-the-insider.htm, and for guidance on your data protection duties, visit http://www.jisclegal.ac.uk/LegalAreas/DataProtection.aspx.
The Scottish Court Service breached the Data Protection Act by failing to take sufficient steps to prevent court documents containing sensitive personal details being accidentally disposed of at a local recycling bank in Glasgow, the Information Commissioner’s Office (ICO) has said. The Chief Executive of the Scottish Court Service, has signed a formal undertaking to ensure that all staff are aware of the service’s policy for the storage, use and disclosure or sharing of personal data. All staff will be appropriately trained and all parties involved in the sharing of data must sign up to a Memorandum of Understanding with the service. Once again a reminder to institutions to revisit their practice and proceedures with regard to management and disposal of records that contain personal data. The Code of Practice under section 46 of the Freedom of Information Act sets out recommended good practice in keeping, managing and disposing of records. It can be accessed herehttp://www.justice.gov.uk/guidance/docs/foi-section-46-code-of-practice.pdf.
The Intellectual Property Office has published an updated version (01-01-2011) of the Manual of Patent Practice to take account of developments in patent law. This includes the latest case law relating to prior use and sufficiency of claim. Although not legally binding, the manual provides comprehensive guidance on the patent process from patentability through to grant and infringement of patent. The manual is available from the IPO website at http://www.ipo.gov.uk/pro-types/pro-patent.htm
Publications
Events
.
Contact Us
For general enquiries, contact us on 0141 548 4939 or send us an email.
JISC Legal Learning Services
University of Strathclyde
Alexander Turnbull Building
155 George Street
Glasgow G1 1RD
United Kingdom
t: 0141 548 4939
f: 0141 548 4216
JISC Legal is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263.
|