Proposed Copyright Amendments for Distance Learning

I’ve been looking at the Intellectual Property Office’s proposals to update copyright exemptions for education, to see if there’s anything I need to comment on. My initial observations are as follows, but I’d be very grateful for comments if I’ve missed something.

I’m not an expert on copyright exemptions or education licensing, but I am a distance learning student and we are supposed to be one of the beneficiaries of the change. At the moment copyright law (specifically sections 32-36A of the Copyright Designs and Patents Act 1988) contains some exemptions for education, but some of these are restricted to activities "at an educational establishment", so distance learners – who may be sitting at home, in the office or even on trains or planes – can’t benefit from them. The Hargreaves Review of Copyright pointed out the problem several years ago, and the IPO have now published proposed amendments to fix it. Generally these seem OK, but there are a couple of wordings that strike me as odd and perhaps not really matching how distance learning happens.

If you’re translating exemptions from a bricks and mortar classroom to an on-line one then it’s reasonable to require equivalent access control to ensure that only teachers and pupils benefit from the exemption. The original consultation on implementing the Hargreaves Report mentioned Shibboleth and Athens authentication and authorisation systems as acceptable ways to do that. To access an on-line Virtual Learning Environment I run up my web browser, type in my username and password (assuming I’m not already logged in through single-sign-on) and get access to the teaching materials. No username/password, no access.

However the IPO draft amendment, while still apparently intending the same thing to happen, describes that process as gaining access "by means of a secure electronic network which is only accessible to staff or pupils of the establishment". Now my access is indeed secure and limited, so the rightsholders’ interests are protected, but that’s achieved by authenticating to the VLE server, not having a private network between me and the content. Depending on where I am, the "electronic network" that I use to get to the VLE may be BT ADSL, or a hotel wireless network, or 3G on a train. None of those is "only accessible to staff and pupils of the establishment". As far as I can see neither the Act nor the amendments contains a definition of the term "electronic network", which means it should be given its every day interpretation. Fitting that to what actually happens several layers higher up the network stack seems a bit of a stretch.

The second oddity is in the exemption for showing recordings of broadcasts (for example in lectures). At the moment, again, that is limited to the physical premises. The new amendments would allow access to remote users of a VLE but only if the recording is "communicated ... by a person situated within the premises of an educational establishment" (c35(1A)). In an amendment that’s supposed to fit the law to the Internet, it seems the brick walls are still there. What if my tutor happens to be working from home or, indeed, is a distance tutor as I am a distance student? Do we both lose the protection of the copyright exemption? In this case it appears that it would be possible to comply with the strict wording if all recordings were placed on the server by an on-site service (we used to call them 'library' or 'audio-visual') and the tutor then just linked to them. But for a document modernising copyright, that still feels a bit old-fashioned. Since the current s35(1) will still require the recording to be "made by or on behalf of an educational establishment for the educational purposes of that establishment" and access will be limited to those either on the premises or with a valid staff or student login, I’m not sure what is achieved by the extra constraint on the location from which the recording is uploaded.  

@copyrightgirl has a summary of all the proposed changes for education, libraries and research