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Welcome
Welcome to the JISC Legal newsletter covering what's been happening in September 2010.
‘It’s good to be able to wish JISC Legal a happy 10th birthday this month! – We started life as a one year pilot project with a staff of 1.2 FTE, and have grown up into a fully fledged JISC advisory service for the FE & HE sector with a team of eight. We are grateful for all the feedback we have received over the past decade. I hope users of the service and visitors have seen the improvements we have implemented in the past and we will continue to innovate with the needs of you and the sector in mind. For example, our website has gone through three major incarnations and we have introduced live and recorded webcasts as well as continuing to provide guidance in more traditional formats. Technological change shows no sign of slowing and new areas such as Web 2.0 and Social Media – with its benefits and challenges – are now part of JISC Legal’s work. New legislation continues to be introduced, in the past decade JISC Legal has supported institutions in dealing with the introduction of Freedom of Information legalisation, more recently we provided briefings on the Digital Economy Act. To celebrate our 10 years and looking forward to the next 10 years, we have produced our Top Ten Tips which we have designed to assist you and your colleagues in navigating the advantages ICT brings to you and your students but without the fear of large legal bills.’
– Ralph Weedon, Director
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This month also marked the Equality Act 2010 coming into force. If you are interested in specific information on compliance with this law, or on accessibility duty in general, please see this new guide produced by JISC TechDis with input from JISC Legal.
For further details and to keep-in-touch with developments in IT law, please check the relevant section of the newsletter.
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
A Spanish court has affirmed the interpretation of the law that applies to uploaded video material in this case from Spanish television. As in the UK, EU law protects online service providers from liability for material that third parties publish. It was held that in this case YouTube would only become liable for infringement once it has been told of specific videos that infringe specific copyrights and fails to act to remove them from its site. This is once again a reminder to FE and HE institutions to have notice and take down procedures in place to be able to respond quickly to complaints about the provenience of content that they publish. A notice and takedown policy template is available on the Web2Rights website at - 3.13 Notice and Take Down Policy Template: http://www.web2rights.org.uk/documents.html#a3. Further details of the court case can be found on the OUT-LAW website at: http://www.out-law.com/page-11400.
Australia's Federal Court has ruled that there is no copyright in newspaper headlines. Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. This was the decision in the Australian case of Fairfax Media Publications v Reed International Books (Fairfax v Reed [2010] FCA 984). The Court noted that the headline is meta-information about the work (the article itself), not part of the work. The decision, although not binding in the UK, re-enforces the long-standing view of copyright law that there is no copyright protection for de minimis works, such as words, titles and advertising slogans. If a similar interpretation is applied in the UK then this means that those, including FE and HE institutions, that abstract and summarise the works of others can continue to use the title or headline of the original source when citing the original source. Further details of the case can be found on the OUT-LAW website at: http://www.out-law.com/page-11378.
The Equality and Human Rights Commission has issued specific guidance on the Equality Act 2010 which is in force from October this year. There are guidance documents for employers, workers, service providers service users and education providers. Guidance for students is due to be available later this month. The guide for education providers sets out how equality law will affect all FE and HE institutions. To access the document, please go to: http://www.equalityhumanrights.com/advice-and-guidance/guidance-equality-act-2010/equality-act-2010-guidance/.
The benefits of the internet in learning are vast, however a new book by Nicolas Carr suggests there are some negative effects on brain activity also, reports the BBC. Surfing and searching the internet has been shown to activate decision-making parts of their brain, but these patterns of brain activity could also have a negative impact on the ability to concentrate. Carr suggests that using software that makes tasks simpler may impede our ability to learn effectively. He states ‘when you think about how we're coming to depend on software for all sorts of intellectual chores, for finding information, for socialising - you need to start worrying that it's not giving us, as individuals, enough room to act for ourselves.’ His book is based on several studies of e-learning and gives a very different perspective for FE and HE to consider. To find out more, please see: http://www.bbc.co.uk/news/technology-11263559.
The UK Government has outlined how the cost of tackling online copyright infringement, as laid out in the Digital Economy Act, would be met. The music and film industry will pay three-quarters of the costs of pursuing copyright infringers, with internet service providers paying the remaining quarter. This will not directly affect FE and HE institutions as providers of services to their users. The crackdown will see letters sent to those suspected of online copyright infringement. It was also revealed that there will be no fee charged to those who want to appeal against the notifications. The ruling by the Department for Business, Innovation and Skills will now be submitted to the European Commission before it is introduced in Parliament as a Statutory Order. Ofcom, the communications regulator, will be responsible for implementing the notifications process, which comes in to effect in 2011. The Department for Business, Innovation and Skills information can be accessed on their website at: http://www.bis.gov.uk/assets/biscore/business-sectors/docs/o/10-1131-online-copyright-infringement-government-response.pdf.
Following a consultation earlier in 2010, the ICO has published a Code of Practice which indicates how they will utilise their right to serve assessment notices for compulsory audits of data controllers. The ICO was granted new powers under the Coroners and Justice Act 2009. At present the right only extends to government departments, but in his introduction to the code the Information Commissioner states “However moving forward it is entirely reasonable to expect that, where the evidence supports it, I will seek to extend my powers to undertake ‘compulsory’ audits in both the private and pubic sectors.” Colleges and Universities are reminded that the ICO can already conduct ‘consensual’ audits of data controllers and the code indicates the differences between the two types of audit. It should also be noted that under s.42 of the Data Protection Act 1998, the ICO already has the power to make an assessment of a data controller where a request is received from ‘any person’ who believes they may have been affected by the processing of their personal data in alleged non-compliance with the act. Institutions in Scotland will be aware that the Scottish Information Commissioner has already used his powers to undertake practice assessments of a number of universities and colleges in Scotland under the Freedom of Information (Scotland) Act 2002 (FOISA).
More information is available at:
The European Commission wants to make changes and remove barriers to the re-use of public sector information. The Public Sector Information Directive has already been reviewed but the Commission now wants the public’s view on matters such as fees being charged, the promotion and format of information available and the application of the Directive. This will, according to the Commission, generate new businesses and jobs as well as unlock ‘PSI’s economic potential’. These changes are likely to be relevant for all public sector organisations, including institutions. Staff in FE and HE who wish to contribute to the consultation can do so at: http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=psidirective2010. The full article from Out-Law is available at: http://www.out-law.com/page-11365.
The NASUWT says a new online communications code for teachers is a waste of money and unnecessary, as teachers already know what is expected of them. The code of conduct, being launched by the General Teaching Council for Wales, states that teachers and learners should communicate appropriately and professionally both in and out of school and that relationships should be based on 'trust and respect'. By including social networking sites in the new code, the GTCW chair, Angela Jardine, believes that teachers can now ask for policies and guidelines on their use within education. Although targeting schools, this article may be of interest to staff in FE and HE considering the implications of using online communications in teaching and learning. For more information, please go to: http://www.bbc.co.uk/news/uk-wales-11281058.
Technology critic, Bill Thompson, warns that comments posted on Twitter are not private and care should be taken when posting to the site. He discusses the misleading informal set up of online tools like Twitter and Facebook which encourage spontaneous chat and immediate responses to comments posted. Previous private conversations can now reach a world wide audience with a traceable message trail. Institutions already using Twitter and Facebook as learning tools may wish to remind staff and learners to take care before they post and be aware of the potential consequences of careless comments directed to, or about other individuals. For the full article, please go to: http://www.bbc.co.uk/news/technology-10740954.
Robin Meakin claimed that the BBC stole his game show ideas and infringed the copyright in his submitted proposals. Mr Justice Arnold concluded that the case should not go to full trial as the claims were not realistic and there was not sufficient similarity between the BBC broadcasts and Mr Meakin’s proposal to give rise to ‘any inference of copying’. The copyright in the concepts and ideas behind the programme proposal could represent infringement but, in this case, it was found that the ideas were generally ‘at a fairly high level of abstraction’ and there was little chance of the claimant succeeding in proving that a substantial part of the expression of the proposal had been copied. This judgment will be relevant to all FE and HE staff interested in copyright. More information on this article is available at: http://www.out-law.com/page-11356.
Tom Brake has introduced a Freedom of Information (Amendment) Bill in the House of Commons that aims to remove the current ministerial veto to block FOI requests, to extend the time limit for bringing proceedings where records are deliberately altered, to limit the response time when considering the public interest and to extend the type of organisations covered by FOI laws. The controversy over the time limit for deletion of information requested under FOI was recently raised in the university ‘Climategate’ affair. Extending FOI to include private organisations carrying out public functions is already being considered in Scotland. Any changes to the current law in managing information and dealing with requests will be relevant to all 'public' FE and HE institutions. For the full article on Out-Law, please go to: http://www.out-law.com/page-11357.
The Business Secretary, Vince Cable, is expected to cut back public funding for scientific research, stating that 'there is no justification for taxpayers' money being used to support research which is neither commercially useful nor theoretically outstanding'. The clear message to the scientific community is to move away from a reliance on public funds and towards 'transforming research into innovation'. Without long term funding, some institutions may find that they have no choice but to focus on research that offers a potential economic return; through actively pursuing business engagement, for example. For the full article from BBC news, please go to: http://www.bbc.co.uk/news/business-11225197.
The Scottish Information Commissioner has begun a consultation on enhancing the information published by public authorities. A 'one scheme fits all' approach is being considered to reduce costs, encourage the publication of more information, make access easier for the public and therefore reduce the number of requests for public authorities. Presently, under FOI, every public authority in Scotland must produce their own publication scheme that is submitted to the ICO for approval and proactively made available to the public. The consultation, aimed at members of the public, public authorities and those with a general interest in FOI, is now open. If you would like to access the consultation paper and make a response please go to: http://www.itspublicknowledge.info/home/News/PublicationSchemeConsultation.asp. The consultation closes on Friday 29 October 2010.
Google has proposed paying $8.5m (£5.5m) to settle a lawsuit brought over privacy violation claims concerning its Buzz social network. Those working in the area of data protection will be interested in the difficulties that Google has ended up in after launching its social network. Users initially were given relatively little control over who could see their network of contacts. The complaints about Buzz forced Google to bring in changes that made it an opt-in service and gave users control over who they have contact with. A reminder then for institutions that where changes and new services are being planned that impact on individuals’ privacy that data protection compliance should form a fundamental component of the evaluation process. Further details of the case can be accessed on the BBC website at – http://www.bbc.co.uk/news/technology-11198297.
The recent case of Zurich Insurance receiving a £2.275 million fine for loss of personal data highlights the risks involved in managing data transfer, particularly between countries, when outsourcing IT services. The loss of almost 50,000 individuals’ financial personal data occurred during a ‘routine transfer’ by a third party to a data storage centre in another country. Zurich did not become aware of the loss until a year later. The heavy fine by the FSA follows previous action by the ICO in March 2010 and has attracted huge media attention. As more institutions move towards an outsourcing model for information systems, safeguarding against data protection breaches during transfer is vital. Clearly outlining information security in contracts with third parties and regular audits for compliance can limit the risks involved. For further information see: http://www.scmagazineuk.com/zurich-insurances-fsa-fine-should-act-as-a-warning-on-the-importance-of-protecting-sensitive-information/article/177482/.
The digital remit of the Advertising Standards Authority (ASA) is to be extended significantly to deliver more comprehensive consumer protection online. From 1 March 2011, the rules in the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply in full to marketing communications online, including the rules relating to misleading advertising, social responsibility and the protection of children. The remit will apply to all sectors and all businesses and organisations regardless of size and this includes FE and HE institutions that have an online advertising and marketing presence. The ASA's remit will extend to advertisers marketing communications on their own websites and marketing communications in other non-paid-for space under their control, such as social networking sites like Facebook and Twitter. Further details on the ASA's website at: http://asa.org.uk/Media-Centre/2010/ASA-digital-remit-extension.aspx.
Publications
These Top Ten Tips were created to celebrate JISC Legal's 10th anniversary, all the while looking forward to the challenges UK FE and HE will face in the next ten years.
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 Advance Digital Media & Copyright Seminar (12/11/2010)
In this JISC Advance seminar, experts from JISC Legal and JISC Digital Media will use common real-world scenarios to focus on how copyright and other legal issues impact on the use of digital media. This event has sold out but we will be running it again in different parts of the UK in the near future.
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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