Written evidence submitted by the Association of Colleges (AoC)

The Association of Colleges (AoC) represents and promotes the interests of Further Education Colleges and their students. Colleges provide a rich mix of academic and vocational education. As autonomous institutions, established under the Further and Higher Education Act 1992, they have the freedom to innovate and respond flexibly to the needs of individuals, business and communities.

The following key facts illustrate Colleges’ contribution to education and training in England:

· Every year Colleges educate and train over three million people.

· 35% of entrants to higher education come from Colleges.

· More than half of all Foundation Degree students are taught in Colleges

· 171,000 students study higher education in a College

· Colleges teach over 45,000 students from outside the UK.

Colleges are centres of excellence and quality. 89% of employers training through a College are satisfied with the service provided. 100% of colleges inspected in 2008/09 were judged satisfactory or better by Ofsted for the quality of their provision.

For more information on Colleges please see www.aoc.co.uk

Summary

· AoC supports the findings of the Hargreaves Report and agrees with the Government’s response as it applies to the safeguarding of intellectual property in order to support and develop the digital economy.

· AoC does have concerns about the use of the Digital Economy Act as the primary means by which to enforce the recommendations of the Hargreaves Report.

· The Digital Economy Act has a number of serious consequences for Colleges that may hinder efforts to maximise digital inclusion and foster creativity and innovation in education and learning. These include the cost of enforcement and also the ambiguity around the status of Colleges with respect to certain provisions within the Act.

· AoC seeks clarification from Ofcom as to the status of Colleges under the terms of the Act and strongly recommend that Colleges are defined as ‘non-qualifying ISPs’ to ensure that they remain places for learning, creativity and innovation.

Introduction

1.0 AoC supports the findings of the Hargreaves Report and, broadly, agrees with the Government’s response as it applies to the safeguarding of IPO in order to support and develop the digital economy. In particular we note that the Government state that it is

’important to stress that while the Government’s focus is firmly on economic growth, issues of fairness and social impact are also important in the context of IP rights’ 1

And also that,

‘A key factor in achieving this is reliable evidence, which is particularly challenging in respect of IP infringement because much infringing activity takes place away from the eyes of rights owners and enforcement bodies.’ 2

1.1 In line with previous AoC policy however it should be noted that we continue to have reservations about the Digital Economy Act 2010 (DEA) as a primary means of enforcing the recommendations of the Hargreaves Report.3

We believe that guidance provided by Ofcom may create confusion about the effective implementation of the DEA as it applies to IPO. The Government’s response states that,

‘Following advice from Ofcom... site blocking will not be brought forward at this time. However, the Government is keen to explore the issues raised by Ofcom’s report and will do more work on what other measures can be pursued to tackle online copyright infringement. 4

1.2 The use of the phrase, ‘other measures’ will require explicit clarification if uncertainty as to the ways in which the DEA is to be implemented by Colleges is to be resolved. This is particularly the case as one of the actions listed in the G overnment’s response to the Hargreaves Report is to,

‘ bring forward proposals for a substantial opening up of the UK’s copyright exceptions regime, including a wide non-commercial research exception covering text and data mining, limited private copying exception, parody and library archiving. We will consult widely on the basis of sound evidence ’ . 5

The D igital E conomy A ct and Colleges

2.0 The DEA has a number of serious consequences for Colleges which we do not believe were the original intention of the legislation and may hinder efforts to maximise digital inclusion and foster creativity and innovation in education and learning.

2.1 In particular Colleges are concerned about the cost of enforcing the Act’s provisions. AoC argues that it would place an excessive administrative and financial burden on Colleges to ensure that they are not in breach of the Act and that this may lead Colleges to adopt a ‘risk averse’ position. If Colleges make the decision to withdraw services rather than risk breaching the DEA then students and staff could be disenfranchised with regard to access to digital resources. The educational and, broader socio-economic, effects of such ‘digital exclusion’ would be profound, not least with reference to information access, the costs of obtaining permissions from existing rights-holders, and fair use.

2.2 The Act contains certain ambiguities as it currently stands and it is possible that Colleges could be defined as an Internet Service Provider (ISP), a subscriber and/or a user. AoC would argue that the guidance provided by Ofcom on the enactment of the DEA has to make clear these distinctions and, moreover, that Ofcom include Colleges under its definition of a ‘non qualifying ISP’. In so defining Colleges they would be afforded a degree of dispensation essential to the ways in which the DEA will be interpreted and enforced. The difficulty in interpreting the provisions of the DEA, not least the technical problems involved in its enforcement, pose real challenges for Colleges.

2.3 At a time when Colleges are seeking to make cost savings while remaining innovative in the use of technology, not only in relation to learning and teaching but as part of the economic life of the communities within which they exist, any legislative measure that restricts the use of digital resources is of real concern to the sector.

2.4 Colleges have expressed concern over the implied technical measures required to implement the Act, both in terms of cost and efficacy. As one College IT Manager has noted,

‘I do not think there is a technical solution to this at the moment. As soon as there is a technical solution someone will find a way round it. I think we as Colleges should ensure our staff and students are "educated" to understand the issues around downloading or using copyrighted material. If necessary, our disciplinary processes need to be amended to reflect the seriousness of abusing the Act.’6

This point was endorsed by the Government’s response to the Hargreaves Report.7

2.5 The level and scope of monitoring implied by the Act has also raised concerns from those tasked with implementing it within Colleges. As one IT Director has argued:

‘We don’t at the moment keep an audit track of every logon because frankly it would generate so much data that we would be hard pushed to make any meaningful sense of it. In this respect ISPs have a slightly easier task in that they know which IP they have allocated to which subscriber at any moment in time. We may be able to track which PC has which IP (although even that isn’t simple due to Dynamic Host Configuration Protocol (DHCP) lease times) but we would also then need to track which user was logged on to that PC at the time any infringement took place which is another layer of recording.’8

The inability of technical measures to enforce the Act was, again, endorsed by the decision of the Government not to enforce site blocking, but this does raise the question of how the provisions of the DEA will be used to promote the ethos of Professor Hargreaves’ findings.

Despite the use of extensive monitoring systems within Colleges, including software and firewalls to block outgoing ports, most Colleges would face additional burdens in enforcing the Act in that,

‘…what we don’t have is anyone to actually "monitor" these things let alone anything more proactive. What we in fact do is report after the fact if we are given cause to suspect that something has taken place. Even this places a burden on resources from a staffing point of view as this takes a person away from their actual job’.

The above correspondent went on to conclude that whether Colleges were defined as ISPs or as Subscribers under the terms of the Act that, ‘Looking at what this entails in terms of monitoring I have no doubt that we cannot currently fulfill those requirements either technically or…more importantly manpower wise’.9 How Colleges resource the ‘education’ required to create a culture that supports innovative IPO thus remains an issue.

Conclusion

3.0 Colleges already operate simple, effective and proportionate steps to prevent copyright infringement on their networks. AoC argues that the additional cost and administrative burden that the Digital Economy Act requires, and the potential detriment to learning, far outweighs the risks of infringement, for which there is little credible evidence regarding College students. AoC argues strongly that Ofcom guidance should define Colleges as ‘non qualifying ISPs’ or that the Act be amended to allow this definition.

September 2011