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Welcome
Welcome to the JISC Legal newsletter covering what's been happening in October 2010.
We’ve also been busy supporting the establishment of IDRAS, the Improving Dispute Resolution Advisory Service. This service has been set up to assist UK further and higher educations institutions with the effective and efficient resolution of disputes (with students, staff or external bodies) through appropriate alternative methods (such as mediation and early neutral evaluation). It is expected that adoption of such techniques will lessen the costs, stress and ill-feeling that a blinkered resort to formal, adversarial and legalistic procedures sometimes brings. For more information on the service, visit www.idras.ac.uk.
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
The ICO has met with representatives from the Higher Education sector to discuss the implications of Freedom of Information legislation. It was agreed to establish a working group representing the HE sector to work with the ICO in developing sector ‐led and sector ‐specific guidelines around the issues of research data, teaching materials and IPR. After this work has been concluded, then the group might work with the ICO to inform any proposed amendments to the existing sector publication scheme in order to consider whether a framework for proactive dissemination of research data and /or teaching materials which still protected universities’ necessary interests might be feasible. Research council initiatives around open access might provide a model in these discussions. Details of the Roundtable meeting which took place in London on 29 September 2010 are available on the ICO website at: http://www.ico.gov.uk/. (Posted on 28/10/2010)
Fundamental changes to all types of intellectual property claims have been implemented with effect from 1 October 2010. A simplified process for resolving lower value and less complex IP disputes has been created for cases that traditionally were heard in the High Court. The consequence of the streamlining is the reduction of total costs incurred by each side in litigation. The new procedures have been tailor-made for smaller intellectual property claims and, crucially, will enable parties to have greater control over the litigation costs. The changes include the introduction of a cap on the costs that the winning party can recover from the losing party which means that it is now possible for claimants to commence litigation with a clear idea of their potential downside. This will be of particular interest to small and medium-sized enterprises, some of whom have been unwilling to enforce their rights in the High Court due to the risk of high costs liability. Further details of the changes can be found on the Intellectual Property website at: http://www.ipo.gov.uk/news/newsletters/ipinsight/ipinsight-201010/ipinsight-201010-1.htm. (Posted on 26/10/2010)
The contentious Vetting and Barring Scheme is either to be abandoned entirely or hugely reduced in its application in order to establish a balance 'between civil liberties and protecting the public'. This follows protests by various members of organisations and the public who felt that the vetting procedures were far too reaching, unnecessary and would put individuals off volunteering to work with children and young people in any capacity. The scheme was put on hold in June this year. The resulting scheme "if any" will be more 'appropriate and proportionate'. Another review will look at the Criminal Records Bureau information required to be disclosed to employers. Both reviews should be completed by the end of the year. More information is available at: http://www.telegraph.co.uk/news/uknews/law-and-order/8078846/Anti-paedophile-vetting-scheme-to-be-ripped-up.html(Posted on 25/10/2010)
A US company, Righthaven, has been criticised for buying rights to newspaper articles that have already been published, without permission, in order to sue for copyright infringement. The company has already secured many out-of-court settlements due to increasing costs of a defence in court. One blogger refused to settle, claiming that his use of part of a newspaper article satisfied the 'fair use' exemption available in the US. The Court concluded that the exemption was satisfied as the blog only contained factual information of part of a newspaper article, without the commentary that went with it, and the blogger directed viewers to the official newspaper's website. In the UK the more restrictive tests of 'fair dealing' are applied. This case serves as a reminder to FE and HE institutions to remain vigilant in ensuring that materials, including blogs, hosted on their networks, do not contain copyright infringing materials. Effective Notice and Take Down policies should also be in place. More on this article is available at: http://www.out-law.com/page-11483. (Posted on 25/10/2010)
(Posted on 19/10/2010)
While speaking with the Criminal Bar Association, the Attorney General, Dominc Grieve, stated that website owners should be responsible for public posted comments that prejudice trials. In a move to ensure trials are fair and jurors are not exposed to prejudicial material, he wants 'further discussions' on the liability of website owners, particularly those that allow comments by the public to be published. He argues that site owners have a responsibility 'to ensure that a trial is not prejudiced by what is posted.' As reported earlier by JISC Legal, it is currently a defence for websites hosted by FE and HE institutions to claim they had no knowledge of any such content, and that once aware, it was removed quickly and effectively. For the full article, please go to: http://www.out-law.com/page-11453. (Posted on 18/10/2010)
The estate of Adrian Jacobs is suing JK Rowling over copyright infringement. His estate claims that there are similarities between the fourth Harry Potter book and an earlier book written by Jacobs. They also state that plots and themes of the book were copied. Mr Justice Kitchin rejected Rowling's assertion that the case lacked merit and should be dismissed, adding that copyright did protect the content of a literary work which includes the selection, arrangement and development of ideas. Although the similarities seemed to constitute the 'generality' of ideas, not the expression itself, the trial is set to go ahead. Mr Justice Kitchin said that ' [Allen] has a real prospect of establishing that collectively they [alleged copied elements] represent the core of [the book's] architecture'. This story and resulting trial may be of interest to any staff involved in copyright in FE or HE. For the full article, please go to: http://www.out-law.com/page-11455. (Posted on 18/10/2010)
Those involved in the creation of teaching and learning materials will be interested in the Copyright Toolkit produced by Scotland’s Colleges. Scotland’s Colleges exists to support, represent and promote the Scottish college sector. The updated toolkit is designed to be a group of free-standing tools that users will keep coming back to. The toolkit is to be updated on a regular basis. It includes a specific “Guide to Music Licensing” as well as a section headed "Ten Ways to Stay Out of Jail". The toolkit can be accessed on the Scotland’s Colleges website at: http://www.scotlandscolleges.ac.uk/organisational/copyright/copyright.html. (Posted on 12/10/2010)
The ICO has issued a consultation paper on a new 'Data sharing code of practice'. The code clarifies how data protection legislation applies to data sharing and offers a good practice guide for all organisations, including the public sector, when sharing personal information with third parties. The code addresses systematic, routine data sharing as well as exceptional, one-off situations. In addition, organisations are given advice on security and transparency of transfers. All data controllers involved in the sharing of personal data, including staff in FE and HE institutions, are asked to comment on the document. The consultation is now open until 5 January 2011. To access the paper, please go to: http://www.ico.gov.uk/upload/documents/library/corporate/research_and_reports/data_sharing_code_of_practice_consultation_paper.pdf. (Posted on 08/10/2010)
A feature which allows Facebook users visibility into how applications use their data has been introduced. Concerns had been expressed about Facebook apps that friends install which access information even if the user doesn’t use the app themselves. The changes provide more transparency about where user's Facebook data is going and who’s using it. FE and HE institutions should raise awareness of the privacy risks for learners when making use of social networking services. The new arrangements may go some way to alleviate concerns that FE and HE institutions have about encouraging learners to use social networking tools as part of their learning. Further details of the news item can be found on the OUT-LAW website at: http://www.out-law.com/page-11432. (Posted on 08/10/2010)
The law needs to provide more clarity on what actually constitutes personal data and must be clearer about what consent actually entails and whether and when explicit consent is necessary to use personal information. The ICO believes that there needs to be a common sense and modern day approach to data protection. These comments are part of the ICO's contribution to the Ministry of Justice’s (MoJ) evidence gathering exercise on current data protection law. This exercise is designed to help inform the UK’s position on negotiations for a new EU data protection instrument, which are expected to start in early 2011. A full copy of the ICO’s response to the MoJ’s call for evidence, which will be of interest to those working in the area of data protection in FE and HE, can be viewed at: http://www.ico.gov.uk/upload/documents/library/data_protection/notices/response_to_moj_dpframework.pdf. (Posted on 06/10/2010)
The ICO has published a list of organisations being monitored as a result of failing to respond to FOI requests on time. These are mainly councils but also include other public organisations such as the Cabinet Office, Department for Work and Pensions, the Ministry of Defence and the Government Equalities Office. The list is based on the number of complaints received by the ICO, where less than 85% of requests had a response in the appropriate timescale and where authorities had exceeded time limits 'by a significant margin'. Monitoring will last for three months and action will be taken where compliance is especially poor or the organisation is unwilling to make the required changes. This statement highlights to all compliance staff in FE and HE the importance of responding to FOI requests within required timescales. For more information, please go to: http://www.ico.gov.uk/upload/documents/pressreleases/2010/ico_statement_monitored_authorities.pdf(Posted on 04/10/2010)
Following four years of discussions, consultations and updates, the Equality Act has finally become law. Not all measures are in force yet but there are significant changes to discrimination legislation, harassment, the use of health information when recruiting, a more open approach to equal pay and an increase in the powers of Employment Tribunals. FE and HE institutions already have to have in place policies on disability, race and gender. The new single public sector equality duty will become law at a later date. In the meantime, institutions are advised by the Equality and Human Rights Commission to prepare for the new duty by gathering information and carrying out consultations with stakeholders to prioritise action points. A separate code of practice on the new duty will be issued by the Commission shortly. FE and HE staff can access guidance on the Act at: http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/equality-act-2010-guidance/. (Posted on 03/10/2010)
Publications
This podcast, created for the JISC Innovation and e-Learning Conference 2010, explores FAQs on the legal aspects of recording lectures.
JISC Legal for Research (19/10/2010)
JISC Legal for UK Research is your guide to they way JISC Legal contributes to providing infrastructure and support to the needs of researchers.
JISC TechDis has just released a guidance document on complying with equality duty in which JISC Legal has contributed guidance on the Equality Act 2010.
Events
JISC Legal's Kirsty McLaughlin will be participating at the Media & Learning Conference 2010 in Brussels on 25-26 November. She will contribute to the dialogue on using IPR with educational media. For more information on the conference please go to: http://www.media-and-learning.eu.
This half-day course in central London by the Campaign for the Freedom of Information covers significant decisions made by the Information Commissioner since June 2010 on issues such as 'fair' and 'unfair' disclosures of personal data, the FOI/EIR border, the application of specific exemptions, administrative provisions and vexatious requests. For more information, please go to: http://www.cfoi.org.uk/pdf/foidecisions_nov10.pdf.
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
JISC Legal is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263.
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