Stuff… and yet more stuff ….New Regulations & Developments

in ‘Copyright’ and on-line working for schools

a presentation for

London Grid for Learning Consortium Conference

by Marshall Mateer

NEN consultant marshall.mateer@btinternet.com

London, 13th July 2012

Introduction

Change is endemic and no more so than in the fields of on-line regulation and copyright. While the focus of our work is education - learning & teaching - and their communities, the changes we are considering today are largely set by the highly targeted drivers of economic ‘growth’. June and July this year saw the introduction of a series of regulations and developments affecting all UK users – including schools and those who support them with online services. Many of these developments are caught in the pushes and pulls of the UK stance vis-à-vis EU directives. What we are considering today in terms of the UK and Europe is also happening, in some form, worldwide - we are not alone.

“And behind it all an economic driver: Harnessing the value and making the most of the UK's intellectual property is a vital element of a vibrant and modern economy. The measures outlined today will form an important part of the Government's growth strategy, the "Plan for growth", making sure the UK is one of the best places to start, finance and grow a business." Business Minister, Norman Lamb, 2nd July 2012.

I’ll be describing ’10’ developments that affect us - some distant from our daily concerns, some, if unexciting, very necessary to them and some quite fundamental - yet none emanate from and none are managed through the Department for Education. In the development and implementation of these changes the voice for schools has to be raised from afar - and use initiative and persistence - to gain a place in the chambers of debate.

NEN has persisted over the past five years and responded to national consultations ‘on behalf of’ schools , working with national agencies such as Ofcom and the UK IP Office, as well as networking with our peers in JANET and JISC; it has also worked with, for instance, the British Library, the National Archives, Creative Commons UK & Consumer Focus and the education copyright org. in Australia. The NEN, to which LGfL contributes, represents all UK - RBC and LA throughout England and the education network organisations of Scotland, N. Ireland and Wales - and has attendance from Ireland.

In raising awareness and knowledge amongst the workforce and embedding them into the curriculum these matters need to be integrated into ‘real learning contexts’ and are often inseparable from other topics discussed today, such as on-line content and tools, security and e-safety.

A lot of the information has been collected together for schools - new articles on ‘Cookies’ and the ‘DAE Code’ next week - and is online in the NEN’s ‘Copy Rights and Wrongs’. www.copyrightsandwrongs.nen.gov.uk

Marshall Mateer, July 2012.

Global Tug o’ Interests

Example: ACTA ACTA is/was a multinational treaty for the purpose of establishing international standards for intellectual property rights. Developed in USA it has been rejected at various EU committee stages. It is like a big framework for national DEA Infringement Codes – and a trade treaty, not itself a law. Supporters say it is aimed at large-scale counterfeiting, encourages legitimate business development and its opponents are raising red herrings. Opponents say it is anti-democratic in how it was assembled, biased in terms of its political/economic benefits and anti human rights; there is a vigorous campaign against it in many countries.

Latest news: 4th July; EU parliament vote ‘No!’ “The Anti-Counterfeiting Trade Agreement (ACTA) is a dead parrot.” 478 MEPs voted against, 39 in favour with 165 abstentions

Late, Late news: 10/11th July. A treaty between Canada & EU includes ACTA-type clauses and resurrects the debate. Next?

EU introduction: (still there on Wednesday): http://ec.europa.eu/trade/tackling-unfair-trade/acta/ Critical concerns: (still there on Wednesday)

http://www.openrightsgroup.org/ourwork/reports/briefing-on-the-anti-counterfeiting-trade-agreement

BBC news before the vote: http://news.bbc.co.uk/democracylive/hi/europe/newsid_9730000/9730325.stm

BBC news after the vote: http://www.bbc.co.uk/news/technology-18704192Professor

Zebra’sdead parrot

impersonation.

open, dispersed closed, proprietary

regulation, law

“Balance for the People” Lord Macaulay, 1842

internationalnational

Phew! That WAS quick!

Cookies The Privacy and Electronic Communications Regulations May 2011 requires website owners - those setting cookies - to provide clear and comprehensive information on cookies and to gain "informed user consent". As of 26 May 2012 the Information Commissioner's Office (ICO) can start to take enforcement action.

It is now an opt-in regulation rather than an opt-out one or a case of blissful ignorance.

It is no longer sufficient to say you use cookies and won’t collect personal data.

GUIDANCE: ICO guidance on cookies: http://www.ico.gov.uk/news/blog/2012/updated-ico-advice-guidance-e-privacy-directive-eu-cookie-law.aspx ... includes pdf with guidance on cookie audits and forms for collecting 'consent‘

ADVICE: ICO advice for the public on Cookies: http://www.ico.gov.uk/for_the_public/topic_specific_guides/online/cookies.aspx

GUIDANCE: JISC Legal: Thorough Guidance on all things 'cookie' legislation for Colleges and Universities. http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/2051/What-Does-the-New-Cookie-Legislation-Require-us-to-do.aspx

INFORMATION: General information: http://www.allaboutcookies.org/

THE ACT: The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (UK Regulations) http://www.legislation.gov.uk/uksi/2011/1208/made.

CRITICISM: Not that all this has gone down without some critical comeback. See, for instance, this from the Guardian: http://www.guardian.co.uk/law/butterworth-and-bowcott-on-law/2011/may/27/cookie-law-shambles-web-browsers

NEN has followed these developments carefully and exchanges information and good practicethrough its UK and Ireland wide NEN Technical Strategy Group.(NEN TSG)

This information on Cookies is now online at www.copyrightsandwrongs.nen.gov.uk

Hmmm…

I just wonder …

Cookies: What to do? A: Make a table and inform users.

• Audit your use of cookies. List types, values, expiry & functions of the cookies used by each website or service. • Categorise cookies into types by ‘intrusiveness’ - high, medium or low.• Assess the level of ‘intrusiveness’ which in turn determines the level of measures taken• Don't forget 'third party cookies' such as 'Google Maps' or 'You Tube' embedded videos. • If ‘intrusiveness’ levels could be considered ‘high’ consider ‘opt-in’ options.• Don’t wait for possible 'in-built' solutions to turn up. (see ‘Google Analytics’ below)• Comply with the Data Protection Act 1998; no harvesting unnecessary data, etc.• Inform users on what they can do to manage cookies at personal browser level.• Inform your community of users - as an LA or RBC or NEN - on the issues.• Educate: somewhere along the curriculum line, it should be part of 'digital literacy‘ and CPD.

Of interest to many web service providers is the concept of 'implied consent' which could be appropriate for uses of cookies that are low level intrusive; but the consent still has to be "specific and informed" and the advice is that information and measures should be in keeping with the knowledge and expectations of the audience of users.

Information for users on what cookies are, what particular ones are in use and what they do is a ‘quick win’ which will, in ICO opinion, go a long way to complying with the regulations.

Make up a ‘table’ in appropriate language for your audience to inform users. (see some examples below)

EXAMPLESICO: http://www.ico.gov.uk/Global/privacy_statement.aspx RBC: http://www.embc.uk.com/Pages/TermsofUse.aspx JANET: https://community.ja.net/library/janet-policies/janet-cookie ‘Google Analytics’: http://tools.google.com/dlpage/gaoptout

… all these cookies … hmmm! I’m so hungry … I must slake the Cookie Monster inside …

http://cookit.e2bn.org/recipes/printview-170-fortune-cookies.html

Online Infringement of Copyright and theDigital Economy Act 2010 – Initial Obligations Code

The so called ‘three strikes’ legislation that allows Copyright Owners to gather evidence of online Copyright Infringement and present to suspected offenders/locations - aimed at mass downloading/uploading, illegal P2P activity. Copyright owners collect evidence of mass infringement activity through IP addresses supported by time log data into 'Copyright Infringement Reports' (CIR). Owners probably not targeting Public Sector.

NEN has followed these developments carefully, is in touch with Ofcom and has responded to the national consultations by Ofcom ‘on behalf’ of schools, teachers, learners and RBC/LA. See

• DEA received Royal assent in April 2010 . Lengthy debate, legal challenges & consultations.• Ofcom publish draft ‘Initial Obligations Code’ (IOC or ‘the Code’) July 2012• Progress to EU and UK Parliament – ‘technical’ as in drafting of regulations.• Enactment forecast for February 2013 … but impact on ‘public’ probably not till early 2014

Major issue for public sector bodies is how a model based on a home and its ISP supplier – now improved in the draft Code - works across the complexity of the pupil, parent, school, LA, RBC, supplier relationships – technically, contractually and legally. A key question for schools, libraries, colleges and universities is: are they, in terms of the Code, ‘subscribers’, ‘ISPs’ or ‘intermediaries’ ? The answer is: ISP. However, they will be in the group designated ‘non-applying ISP’ in the first implementation of the Bill which will be effective for only the largest ISP. BTW VLE probably count as ‘school’ - it’s the IP address that counts. LA and RBC could be ‘intermediaries’ – but it all depends ….

What the Code says: Annex 5.40 “public bodies like libraries or universities are likely to be ISPs, providing internet access under an agreement with their readers or students respectively”.

Main Ofcom page: http://stakeholders.ofcom.org.uk/consultations/infringement-notice/

The full Draft IOC of ‘the Code’ with Summary - Annex 5 has notes on edu/public sector.http://stakeholders.ofcom.org.uk/binaries/consultations/online-notice/summary/notice.pdf

NEN response to Ofcom consultation 2010:http://www.nen.gov.uk/media/187/response-to-ofcom-consultation-on-online-copyright.html

Aren’t you glad you’re not in USA;they look like having a ‘Six Strokes’ Bill – the ‘Common Framework for

Copyright Alerts’.

DAE, Online Infringement of Copyright: What to Do?

Previous developments with e-safeguarding, security of school networks and good practice in AUP in schools and across education networks puts schools in a good position – particularly those working with high quality services such as those of LGfL. BUT on its own is not enough. Needs reviewing and development in specific terms of DAE, the Code and its intentions and keeping an eye on developments.

NEN recommends that schools have in place:• awareness of 'Copyright' issues amongst their community • adequate Acceptable Use policies, including compliance measures • effective network management – monitoring and reporting systems• monitoring of large scale up/downloading • advice to their workforce • a programme of copyright education for pupils • awareness of DEA Code

Consider• Nature of agreements that students, parents, workforce and schools ‘sign’.• Upstream/Downstream consistency between AUP. • Seek view or position of those you receive services from re DAE Code.• Colleagues in ‘Libraries’ have been looking at this legislation with concern so LA ‘legals’ may have view – is this fit for schools? Have your colleagues in Libraries a view? Has the LA a view?

Extrapolate all above to LA and RBC ‘situation’ • It may be necessary to map the Code along several axis: the location’ of legal responsibilities – child, parent, workforce, school, LA, service providers; the AUP agreements in place; the contracts of service in place; agreements for use of funding (?); the network ‘architecture’ and management structures. • Check out Andrew Cormack’s JANET pages to see how he maps it for Colleges and Universities – how will it fit for schools? https://community.ja.net/blogs/regulatory-developments/article/digital-economy-act-who-covered

NEN activity• NEN TSG currently writing a short guidance document.• NEN in contact with Ofcom and working closely with JANET• NEN headline guidance is online at www.copyrightsandwrongs.nen.gov.uk

HyperlinksGrowing number of instances across UK/Europe/USA where courts are saying that provision of hyperlinks is not without consequence, and if it leads to, for instance, illegal stuff or defaming material could be an offence. No longer sensible to say (if it ever was) that hyperlinks are ‘safe stuff’, or ‘neutral’ or whatever; ethics and the law applies from the ‘go’ in using them.

World IPv6 Launched on June 6, 2012Coordinated rollout by major websites and internet service and equipment providers. Currently 4 billion, it will swell to about 340 trillion trillion trillion. Vint Cerf on IPv6 http://you.be/-Uwjt32NvVA

That’s340,000,000,000,000,000,000,000,000,000,000,000,000 -ish

ICANNICANN is the regulatory body based in USA that controls domain names and the global address structure. Continuing rumbles on future governance: Can it stay ‘operative’ and out of the realms of political or corporate influences ? Should it be established in one country – currently USA? Alternative solutions from a number of power blocks round the world. When NGfL began basically there was USA and the rest of the world; then Europe made a bid to be an internet/digital power block. Now there are the new economies of India, Japan and Brazil; China and Russia; a number of middle east ‘blocks’ and other very active individual states all wanting a say. The extent to which they think they should work through existing pan-global orgs such as UN is also moot. While if it ain’t broke don’t fix it may satisfy common sense – nevertheless watch this (cyber)space.Latest June 2012: BBC news on ICANN latest suffix round

NET NEUTRALITYContinuing concerns that broadband service providers could move to one for rich one for the poor services with effects on available knowledge, opportunities & citizenship in digital age. Latest: July 2012: Netherlands makes net neutrality mandatoryLatest: July 2012: ‘Keep the Internet Free’ declaration: http://www.internetdeclaration.org/freedom

Copyright – four situations and many contexts, media and platforms

Schools are sophisticated users of resources and communications technologies (digital and analogue).

As well as being USERS and CREATORS of copyright materials they are also DISTRIBUTORS and PUBLISHERS and very importantly, as it often slips by almost un-noticed, RE-USERS of other people's materials.

In many instances pupils and teachers can take on all four roles in a single school activity.

On issues of copyright and licensing you have to learn to look at it from four different view points; and you have to be clear if you are ‘you’ or ‘an employed person’ at the time.

Children have automatic copyright of their works (= original & fixed expressions as in digi photo, painting, poem, science report …)

The NEN ‘Copy Rights and Wrongs’ website gathers together information and guidance on Copyright, Licensing and related issues for schools.

www.copyrightsandwrongs.nen.gov.uk

NEN View of Copyright as it is …

• Copyright is not in a fully fit state for the needs of schools and learning in the digital age.

• Schools use media such as film, photography, and these ‘new’ media are ill served by copyright ‘exceptions’. Today copyright must be media & platform neutral.

• The CPDA (the UK Act) is too complex and - in the needs of the classroom for pace, group activity and flexibility to support 30 for so pupils’ learning activity in short time slots - utterly unfathomable.

• Copyright does not really recognise the classroom of today – either the physical unit or the extended digital classroom - or the nature of learning and teaching. Much learning is done in groups - paired, group, class, etc.

• As a result acts that are important for seizing the learning moment can, by the strict terms of the Act, be classed as infringing copyright; and so we work on in a grey mist of hoping it’s OK - because we’re in school.

• Making small additions and amending some exceptions will not solve the issues but simply make the Act even more difficult to understand and work to.

You tell ‘em!

“During the course of a learning activity children will cross over the multiple boundaries and traverse the vagaries of copyright and licensing. They will trip over ‘orphans’, bump into third party rights, be turned away by pay-for services, use licensed and make their own materials – often without knowing that there are multiple copyright dimensions to what they are doing, because, who can know all about copyright? “

Marshall Mateer, British Library, 2010

NEN View of Copyright as it could be …

The framework presents pupils and teachers with a three-step test:1. Am I learning and teaching in the 'classroom'?2. Am I storing these materials for distribution round the school (secure networks) or the extended school (secure platforms or VLE)?3. Am I making these materials available for distribution and/or for publication to the public?

The 'learning and teaching in the classroom’ category is the live, interactive process that requiresflexibility. As a user - teacher or pupil - moves up the ladder the question of 'permissions' becomes more pertinent. Currently step two, described in location terms as the 'classroom',is the grey area of uncertainty and continual low risk (to owners as well as users) infringement.

“Copyright exceptions for education should be [re] formed to support this fundamental process at the core of the education system …” part of NEN quote in Government summary.

personal learning

group learning teaching

secure school network

public spacerange of publishing and collaboration platforms

extended school

school location

'classroom'

any location personal studyand research

general exceptionmedia neutral

c. soc. licencescommercial licences

permissionsparticular exceptions

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U d

irec

tive

'Fai

r D

eali

ng'

extended c. s. licencesone-off c. s. licencescommercial licences

open licencespermissions

secure schoollearning platforms

… and learn to cite your sources!

Copyright Reform in the UK & NEN activity …

2006 ‘Gower’s Review of IP’ – NEN responds

2010 Ofcom Consultation on ‘Online Copyright Infringement and the DEA’ - NEN response to Consultation

Nov 2010 David Cameron’s Shoreditch speech. Making IP fit for UK business innovation …

2010-11 Hargreaves ‘Review of Intellectual Property & Growth’ - NEN response to Consultation.

2010 NEN and Consumer Focus publish Becta report ‘Learning the copyright lessons – copyright licensing schemes in the UK education sector’

2011 Hargreaves Review published calling for 10 major changes. NEN is quoted!

2012 Prime Minister accepts the 10 proposals made by Hargreaves.

March 2012 Series of consultation forums - NEN provides schools’ voice.

April 2012 Hooper enquiry on Collecting Societies - NEN responds.

May 2112 Consultation on Proposals by UK IP Office - NEN response to Consultation

4th June 2012 Government publish summary of responses to their Copyright Consultation. NEN quoted.

2nd July 2012 Government publishes 'Policy Statement: Consultation on Modernising Copyright.'

5th July 2012 Enterprise and Regulatory Reform Bill which would enable:• the licensing of orphan works• enable collecting societies to operate ECL (extended collective licensing) schemes• create “backstop powers” to impose minimum standards on UK collecting societies.

11th July 2012 Meanwhile EU is doing ‘stuff’ on Licensing too … regulation to make ‘music licensing easier’. ?

What next?

Announcements about role of UK IP Office and about – the BIG ONE for us – ‘Exceptions’.

Copyright - upcoming changes (probably):For an easy-read summary of ‘What Hargreaves Means for Schools’ see Marshall Mateer’s website ‘Shapesoftime’ - direct link to Copyright area: http://shapesoftime.net.gridhosted.co.uk/?page_id=37

Orphan works: yes! Immediate effect is on Archives, Libraries, Museums and those with large collections who will now after due process be able to digitise and make available a vast treasure trove of materials for public use. If legitimate owners do come forward then there are safeguards for them built in. Now in legislative process. Could affect citizen ‘archives’ and resource creation. On the face of it a ‘win’ for knowledge and learning. I’m following this closely. More details to follow.

Licences. A lot of work at a beyond us’ level will go into this area. There will now be a framework for Collecting Societies to work to and course of redress for the ‘public’. One area affecting schools is how it will fall on the ‘blanket” licences that they use - ERA, CLA, NLA, Music, etc. Extended Collective Licensing (ECL) is also ‘on’ which gives something to the Collecting Societies. There may yet be a Digital Copyright Exchange (DCE) of some sort to manage all this complexity – or maybe not. Partly in legislative process. MM in touch with, for instance, ERA on developments. I will follow closely and keep NEN community informed.See this section for information on Licences as things are now. http://www.copyrightsandwrongs.nen.gov.uk/licences I will update as things become clearer.

Education Exceptions. It seems that there will be some legislative change to the Act itself and that something fundamental may be done. Can’t wait to see what emerges. Keeping close eye on this and will report to NEN community throughout developments. See this section for information on ‘Fair Dealing’ and Education Exceptions as they are now. http://www.copyrightsandwrongs.nen.gov.uk/schools-a-copyright

EU Directive. Compliance with EU directives, which at some point should include 'format shifting' for personal use. Extension of recorded music copyright (Cliff’s law) 2014 is ‘on’.

A new role for UK IP Office in providing 'guidance' on issues - there could still be a legal linkage to this in what are called 'notices‘. And perhaps better information for education sector on its legitimate use of resources. Also better reference point for those creating and maintaining resources such as ‘Copy Rights and Wrongs’ and producing LA guidance for schools or materials in schools. Once again I am keeping close eye on this and will report.

Use of copyright materials for Parody... Uncertain. See http://shapesoftime.net.gridhosted.co.uk/?page_id=59 for my view of Parody as a pedagogic strategy.

Code and CopyrightGiven the recent promotion for teaching ‘coding’ in schools; – do you

know how it fits with IP? When to use a patent? when to use a copyright? When you design or teach about an ap or game or a

computer controlled device, whatever?See http://www.copyrightsandwrongs.nen.gov.uk/students/code

Coming your way soon …

Open Data

UK Open Data policy is moving ahead into a new phase following EU directive. Rather than a nice thing to do with this or that material it could be a must do for all compliant material. Will affect all LA. It is thought it will make cohesion between services – through for example, ‘linked data’ easier to follow through on truancy. NEN following developments.• Open Data White Paper and Departmental Open Data Strategies

http://www.cabinetoffice.gov.uk/content/open-data-white-paper-and-departmental-open-data-strategies • Revamped Open Data website: http://www.data.gov.uk/

Creative Commons

Creative Commons UK has launched a new, much improved website with lots of activity. Creative Commons getting ready to launch a new set of licences based on a global legal underpinning. Early next year? NEN are in discussion with CC UK. Activity on Open Education Resources (OER) initiatives.• www.creativecommons.org.uk/ • see also NEN Copyright and Wrongs on Creative Commons

Defamation Bill

On its way through the regulation process. Seeks to improve existing law relative to ‘trolling’, cyber bullying’, etc. Framework of requirements for website owners/operators – bit like ‘Cookies’ in that respect – dealing with responses to potential defamation on open/contributory websites. Will affect anyone running ‘open’ forums, contributory, comment services. JANET are involved in the development of the Bill - NEN following. Schedule 2012-2013.

• General News: http://www.guardian.co.uk/law/2012/jun/12/internet-trolls-bill-defamation-online• A view on how it may affect Science

http://www.guardian.co.uk/science/blog/2012/jul/09/defamation-bill-scientific-free-speech

• Articles on Cookies and DAE Code on www.copyrightsandwrongs.nen.gov.uk – very soon – LGfL will notify.

• NEN guidance on Networks and DAE Code - LGfL will make available.

• NEN upcoming meeting with ERA. Comments or questions to MM.

• NEN contact with OFCOM. Any feedback on DAE and the Code to LGfL and onto MM

• Education Exceptions. I will post updates as they occur on www.shapesoftime.net

• Creative Commons. Is anyone using or knows of school using CC licences for teacher or pupil resources or as a method of teaching about copyright? Please contact MM.

• Comments on Copyright in general always welcome.

… and even more stuff to come ….

Marshall Mateer marshall.mateer@btinternet.com

www.shapesoftime.net

www.copyrightsandwrongs.nen.gov.uk

Youhumans !