Technical and Further Education Bill

Written evidence submitted by the Federation of Awarding Bodies (TFEB 08)

Technical and Further Education Bill 2016 – Federation of Awarding Bodies feedback to the Public Bill Committee

Overview

1. The Federation of Awarding Bodies is the trade association for technical, professional and vocational awarding bodies with over 130 organisations in membership. Approximately 66% of our members are employer-led trade and professional bodies who operate to support the development of skills in a specific sector, such as the Chartered Institute for Securities & Investment and the Royal Horticultural Society. Most of our members are regulated by Ofqual, the qualifications regulator for England and many are charities or not-for-profit organisations.

2. The Post-16 Skills Plan and the Technical and Further Education Bill 2016 are both of significant interest to our members in terms of the implications these could have for learners, providers and occupational sectors as well as qualifications and the future operations of awarding organisations.

Summary

3. The Federation’s feedback on the Technical and Further Education Bill covers two key points. The first point relates to the requirement for the copyright for technical qualifications to be assigned to the Institute of Apprenticeships and Technical Education (IATE). This has many implications for awarding organisation members. The second point relates to the addition of occupations to the 15 routes, even where there is no appropriate route. This has implications for the design and delivery of core content for each route and also presents a risk that, over time, the clarity and focus of each route will become so diluted that it confuses learners and other stakeholders.

Feedback on the Technical and Further Education Bill

4. The Federations’ feedback on the Technical and Further Education Bill relates to two parts of the Bill:

Copyright

4a. Our key concern relates to the copyright provision for technical qualifications in the Bill and the transference of this intellectual property (IP) to the Institute of Apprenticeships and Technical Education (IATE). The Bill states that: ‘The Institute may approve a technical education qualification under this section only where the Institute is satisfied that each person (other than the Institute) who it thinks is entitled to a right or interest in any copyright in those documents agrees to the right or interest being transferred to the Institute (AD2A, 35, page 25). It further goes on to say that ‘The right or interest in any copyright in a relevant course document is, by virtue of this section, transferred from the person to the Institute at the time the approval is given’ (A2IA, 5, Page 28).

4b. The proposed legislative scheme appears to make the approval of qualifications produced for IATE conditional on the copyright in the qualification documents being transferred to the IATE. Where the IATE knows that there is no agreement to do so, it may not be able to approve the qualification i.e. it is likely to be a term of the procurement of a qualification that copyright will be transferred. Our concerns about this situation include:

4b.1 There is no mention in either the Sainsbury Report or the Skills Plan of the handing over of copyright to the IATE in documents related to qualifications. The only reference to this requirement is in the Bill.

4b.2 This would leave awarding organisation (AO) with no choice other than to agree to the transfer of the copyright of their qualifications to IATE. AOs would, in reality, be required to invest the substantial resources required to develop a qualification and then hand the IP to IATE. There is no reference in the Bill or the Post-16 Skills Plan to AOs being compensated in any way for the loss of their IP. Neither is there any reference to the cost (including payment for the loss of IP) of the initial qualification development being paid for by any third party (IATE, Department for Education etc.) as part of the licensing agreement that have been proposed in the Post-16 Skills Plan.

4b.3 If an AO did not want to hand over its IP it would be in a position where IATE would not approve its qualification for use in the funded market. This effectively closes the 16-19 market to AOs who do not wish to relinquish their IP. How the Post-16 Skills Plan will impact on the adult market is not yet clear and this copyright issue has the potential to impact in this market segment too.

4b.4 We are further concerned that the Bill seeks to give IATE the power to assign or grant a licence of the copyright to any person. The Explanatory Notes envisage that this might include the person that produced the qualification. It could, however, be another party which would mean that an AO could see the copyright for its qualification being assigned to another AO in the market. This would mean that an AO who bore the cost burden of the development of a technical qualification could see it handed to another organisation and would have no means to re-coup the initial investment made in the development. This scenario would have the potential to place some AOs in significant financial difficulties.

4b.5 In some cases, AOs develop a single qualification that is suitable for use in different segments of the market, including the funded 16-19 segment. If an AO developed a qualification and was required to hand the IP over to the IATE, it could not then continue to offer it in other segments of the market. The copyright arrangement therefore completely closes down the opportunity for the AO to re-coup development costs and constrains their ability to have single offer in different segments of the market.

4b.6 In many sectors there are well-established qualifications with a strong privately funded or international market in addition to the funded, post-16 market. It is, therefore, unlikely and unreasonable to expect that an AO would relinquish IPR for such a qualification. This would be likely to result in young learners being denied access to exactly the type of qualification that they would need to work in specific sectors.

4b.7 There is an important and expanding market for UK qualifications overseas. This would be severely affected if the AO could not protect the IPR and could be charged by IATE for use of the IPR that they had developed.

4b.8 With ownership of the IPR transferred to IATE there would be little incentive for AOs to invest in development of qualifications, especially if a monopoly position is to be created in the areas included in the 15 routes.

5. The Federation believes that the transfer of the ownership of copyright, as it outlined in the Bill, is deeply unfair and detrimental to AOs. This is particularly the case given the absence of any information on how the licensing arrangements for the 15 routes outlined in the Skills Plan will be operated and whether any tendering process will provide AOs with access to funds to cover the costs of the production of technical qualifications. AOs (charities, professional bodies, chartered institutes, SMEs etc.) cannot reasonably be expected to invest in the development of a qualification only to have to sign away their copyright and potentially see it licensed to another AO in the market.

Categorising occupations into 15 routes

6. The Technical and Further Education Bill (ZA10, 4) states that ‘If the Institute considers that no category is appropriate it must nevertheless allocate the occupation or group to a category ( and is not required to adjust its determinations under subsection (1) ) .

7. The Federation is concerned that adding occupations to routes that are not appropriate will result in routes that are so broad that they become meaningless. For example, the 15 routes outlined in the Report of the Independent Panel on Technical Education include the Creative and Design route. This route includes the occupations of furniture maker and journalist. It is already difficult to understand how there will be any relevant ‘core content’ across these occupations (and the other occupations in the route). The Federation believes the addition of occupations that are not seen as being ‘appropriate’ will make the design of the ‘core content’ even more challenging and likely to be of less relevance to all learners pursuing a specific route.

8. One potential impact of this is that learners could be required to study core content within a route which is irrelevant and unnecessary for their occupation of choice.

9. The Federation understands that the Independent Panel does not view the future proliferation of routes as being a desirable way forward but we do feel that artificially constraining the number of routes available in order to maintain a certain ‘tidiness’ in the system is not an effective way to achieve a technical education system which is responsive to changing skills needs and meaningful to learners and other stakeholders.

25 November 2016

 

Prepared 28th November 2016