QED LAW revision seminars July / August 2008

Law Revision Course July / August 2008

“I thought that the criminal law seminar was outstanding. The information about how to tackle criminal law questions was so well presented and easy to follow. It complemented perfectly the very clear recorded criminal law lectures which I have found to be absolutely invaluable” Lilian Zihni, LLB, University of London (External)

This year’s summer revision course in the core Law Subjects – criminal law, law of contract, legal system, public law, law of tort, equity and trusts, land law and eu law – will take place on July 26th, July 27th and August 2nd at University College, London.

Open to all law students on LLB – GDL / CPE and ILEX courses.

For further information please click here

Law revision seminars – July / August 2008

Law Revision Course July / August 2008

“I thought that the criminal law seminar was outstanding. The information about how to tackle criminal law questions was so well presented and easy to follow. It complemented perfectly the very clear recorded criminal law lectures which I have found to be absolutely invaluable” Lilian Zihni, LLB, University of London (External)

This year’s summer revision course in the core Law Subjects – criminal law, law of contract, legal system, public law, law of tort, equity and trusts, land law and eu law – will take place on July 26th, July 27th and August 2nd at University College, London.

Open to all law students on LLB – GDL / CPE and ILEX courses.

For further information please click here

Cutting back copyright – part III

I have looked in previous articles at the government’s proposals (or perhaps more accurately the proposals in the UK Intellectual Property Office’s consultation paper on exceptions to copyright) concerning format-shifting and parody. The consultation also covers three other areas dealt with by the Gowers Review of Intellectual Property, and for the sake of completeness I’d better write about them now, as the consultation closes on 8 April.

Accordingly, this piece is concerned first with extending the educational exceptions under the Copyright, Designs and Patents Act 1988 (sections 35 and 36), then with extending the exception for coping for research and private study, and finally with amendment of the library privilege.

Education

The two sections of the 1988 Act that deal with educational exceptions cover recording of broadcasts (section 35) and reprographic copying of passages from published works. In each case, the activity is permitted only if it carried out by by educational establishments, and the exception only applies to the extent that no licensing scheme applies. The Educational Recording Association and the Open University operate licensing schemes permitting the recording of broadcasts, and the Copyright Licensing Agency operates one for reprographic copying – but that does not mean that the sections of the Act are redundant, because there is still work for them to do outside the extent of those licensing schemes.

The Act’s approach of permitting educational establishments to use copyright material without payment until the copyright owners create a mechanism for granting licences (and collecting royalties) is a powerful incentive to put together a licensing scheme. Take payment fr the use of your works, the law says, but until there’s a collective licensing scheme the people who would otherwise be paying can use your stuff without charge. We might reasonably expect that an extension of the exceptions under these two sections would lead pretty quickly to corresponding extensions of the licensing schemes.

Both sections are limited in their usefulness by technological considerations. They were written in a different age. Only people actually on the premises of the educational establishment could be shown or allowed to hear recordings made under section 35, which these days does not reflect the way in which instruction is given, while section 36 applies only to reprographic copying, which effectively limits its usefulness to the production of handouts for distribution to students.

Gowers was keen to have the exceptions defined by intent, category of use and activity rather than by media, as the law does at present. Section 35 does not apply to delivery by web-based means, as in most cases internet transmissions will not fall within the definition of “broadcast”. Webcasts and on-demand transmissions are increasingly used in this area, and indeed in other areas of broadcasting, and interactive elements are often included. As for section 36, this would also broaden out the exception for the digital age.

It might not be necessary to carve out an exception for internet transmissions and on-demand services, as these are not protected by copyright, but they usually contain stuff that copyright does protect. To make a wider section 35 work, it would have to apply to the works that are included in the broadcasts.

These new distribution methods are functionally equivalent to broadcasts, so there is a compelling reason for bringing within the scope of the exception – especially bearing in mind that the main effect of the exception is to provide a incentive to copyright owners to put in place appropriate licensing schemes. But the consultation paper acknowledges that rights owners will be anxious not to see their DVD sales undermined by on-line delivery of the same content under an exception, and that material distributed in this was will be vulnerable to illegal copying. There is, the paper notes, a distinction to be drawn between on-line delivery of material that has already bee broadcast by traditional means or that complements a traditional broadcast, and material that is distributed only in this way. Views are sought on this point. But if material is broadcast in a traditional way, is it not enough that the broadcast may be recorded? Anyone who needs to take advantage of section 35 is able to do so when the broadcast takes place, and allowing them to invoke the same rights when the same material is distributed on-line is an unnecessary complication which might jeopardise the copyright owner’s rights. Where the on-line material is intended to complement the broadcast, then it should be subject to the same exceptions as apply to the main broadcast, but if there is a problem with allowing copying of on-line material it seems harsh to deprive the copyright owner of protection in the way proposed.

Gowers also suggested expanding section 35 to allow the copy to be communicated to students not actually at the establishment – that is, distance learning students. The method of delivery would, however, have to be secure so that the material would not become available to the public at large. Section 35 addresses the question of who may view the recording only by insisting that they are on the premises, and the consultation paper proposes widening this to include all who are “directly connected with the activities of the establishment” – like section 34, which deals with performances.

To ensure that only targeted pupils or teachers are able to see or hear the recordings, Gowers said that the showing should be in a secure virtual learning environment or VLE. Password-protection would be used to ensure that no-one except those permitted to view it would be able to gain access. But passwords are not terribly secure: what steps would the establishment be required to take to ensure that they were not divulged to people who were not permitted to see the recordings? Would pupils have to sign undertakings to keep the passwords secret? That hardly sounds likely.

The section 36 exception does not permit establishments to send material to students by email or other electronic means such as interactive whiteboards or VLEs, only to hand out hard copies. The exception needs to cover other means of “communicating to the public” if it is to be up-to-date, but there would need to be safeguards to ensure that all possible methods of communicating would be subject to security as rigorous as that provided by a VLE.

Then there is the question of who may be permitted access to the material, and again the answer is (probably) those people mentioned in section 34 to whom a school play might be open – a definition carefully crafted in the 1988 Act to make clear that parents might be present as well as staff and students. Again, questions arise about keeping passwords secret, and the same solution as is proposed in section 35 is likely to be adopted.

As for the range of works that should be covered by section 36, the present limitation to literary, dramatic and musical works – the only sorts of works that can be run through a photocopier, apart from typographical arrangements – is out of step with the possibilities of modern teaching technology. But if sound recordings and films were included, they would be made more readily available and this might have an adverse effect on existing business models – as discussed above in connection with section 35.

One problem for the government when considering changes to copyright (and many other areas of law) is the impact of European Community law (or what the consultation paper sloppily terms “European law”). Happily for the government, the information society directive makes no stipulations about what can and cannot be done in the education field, as far as the reproduction right and the right of communication to the public are concerned: so the proposals should not fail on this score.

Copying for research and private study

Section 29 of the 1988 Act, as amended, permits copying of literary, dramatic, musical and artistic works, and typographical arrangements, provided it amounts to fair dealing for the purposes of non-commercial research and private study. Gowers recommended that it be extended to cover all forms of content – in other words, to bring sound recordings, films and broadcasts within the scope of the exception. Students of music and film might find this particularly helpful. However, rights holders might well worry about this: the exception, limited only by the requirement that the use be “fair dealing”, whatever that is, has in the past justified all sorts of things that could never realistically be considered fair. The idea that this particular Pandora’s Box might be opened up again will cause understandable concern on the part of rights holders.

The consultation paper floats four ideas for dealing with abuse of the exception: guidelines (something that was tried before, years ago, by the British Copyright Council, and withdrawn, which does not bode well); requiring a formal link to a course of study or an educational establishment; limiting the amount of a work that can be copied; and limiting the exception to particular courses or educational establishments. All are fraught with difficulty, but clearly if the exception is to be expanded but still kept under control some sort of constraints outside the straightforward wording of the section will be needed. In the absence of clear guidance, the one thing that can be predicted with absolute certainty is that some people will take great liberties under the impression (genuine or just assumed for convenience) that they are allowed to do so.

Digital rights management is an important issue here. Section 297ZE of the obviously much-amended 1988 Act provides for complaints to be made to the Secretary of State where a person has been prevented from copying a work which they would otherwise be permitted to copy under section 29, because of digital rights management systems being applied. This mechanism is already in place for the existing section 29, and would automatically provide the remedy demanded by the information society directive for any extension to the permitted act. This is another matter that causes concern to rights holders, who fear that it might have an adverse impact on their business models. The exceptions themselves should be of limited effect, though – the use has to be fair dealing and for the limited specified purposes – so the “workaround” of the notice of complaint procedure will rarely be invoked – or at least properly invoked.

Library privilege

Finally, Gowers recommended that the existing library privilege in section 42 of the 1988 Act should be amended to allow libraries to copy the master copy of all classes of work in permanent collection for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear. He also recommended that libraries be allowed to format shift archival copies to ensure that records do not become obsolete.

These recommendations seem at first glance irrefragable. It must be a Good Thing to put libraries in a position to preserve items in their collections. Chances are that preservation activities will have no copyright implications at all: if something needs preserving, it is likely to be so old that copyright will have expired. That is not, however, necessarily the case with films (although the 70 years pma term only applies to post-1995 examples of that art form, older ones being protected for 50 years from making or first release – still long enough for celluloid to suffer damage, though) or sound recordings (tapes need careful storage if they are to survive more than a couple of decades), so there is likely to be good reason why a library or archive would wish to carry out such preservation work and need a copyright exception. Suitable safeguards would be needed, and only the right sort of organisations should be allowed to benefit from the exception (the consultation paper opens up the possibility of reviewing the range of organisations, about which Gowers had made no recommendations). But all in all the issues raised in connection with these permitted acts are of less importance than the others reviewed above.

Conclusion

The review closes shortly and proposals for legislation will follow. Whether the changes will follow the models described in the consultation paper or not remains to be seen – but this is clearly a document more in the nature of a white than a green paper.

Brother, can you spare a quid? — But it’s not all bad at the Criminal Bar!

Some controversy has been engaged over the high sums paid to barristers who receive legal aid payments for their criminal work. At the top of the list is a Birmingham barrister Balbir Singh, head of Equity Chambers. He has earned around £1m per annum for the past two years, coming ahead of a number of QCs. It is worth considering Mr Singh’s treatment in the media before passing on to some more general treatments of legal aid provision in this country. Reporting Mr Singh’s earnings last year from legal aid, several newspaper reports seem slightly surprised that he should have earned so much without being a QC and that his earnings from public funds should have exceeded those of the nine silks in the top ten highest paid barristers for the year ending 31 March 2007. This just goes to show that a senior junior may often do as well financially as a QC and one can only ask if he would have earned as much had he taken silk. John C Rees QC, second in the list, took home fees of £956,000, just £10,000 lest than Balbir Singh.

His own biography on the Equity Chambers website says that his is a former magistrates clerk but if there is anything snobbish in this suggestion, we are further told in one report (The Telegraph 27 July 2007) that Balbir Singh was accused of impropriety in a television programme, The Cook Report, some ten years beforehand. He was subsequently acquitted by a Bar Council disciplinary tribunal of telling a client to concoct an alibi and to destroy evidence, the tribunal saying of the television trial by media that its evidence was inconsistent, unreliable and not credible. Some 60 judges and QCs came to Mr Singh’s aid and, ironically, his career seems to have blossomed afterwards. Was there a slight snigger as the report announced the results of his success over the nine silks by saying that he ‘has never been promoted to the rank of QC’ — perhaps he has never thought it desirable. If so, one can hardly blame him for not seeking preferment.

Clare Dyer in a report in The Guardian referred to Mr Singh’s having gone to a grammar school and then Walsall College before attending Coventry Polytechnic. One would have thought that these were great reasons to praise the Bar’s diversity as a career open to talents. There is, however, the slightest suggestion of wondering what Mr Singh who comes deep from the Brummie hinterland, should be doing as the fattest of fat cats.

 Before we all wonder what these highly paid defence counsel do with all their money, we are reassured by the Minstry of Justice that the figures now revealed may refer to sums earned over a number of years. Slow payers at the Legal Services Commission, eh? Moreover, they include VAT, so let’s deduct 17.5% for a start, and the barristers have to pay disbursements for travel and professional expenses to their chambers. Perhaps that’s a further 30%. But when you are ready to reach for your handkerchief to wipe away a tear of sympathy, they also have to pay tax and national insurance. Good heavens, don’t the rest of us? Perhaps even some horrendous self-employed pension contributions as well. Either they’re over-paid or not and it’s strange to see the Ministry of Justice trying to make excuses.

Looking at the comparatively paltry sums paid in civil legal aid to practitioners — generally under half a million pounds annually, one realizes, if one hasn’t quite read the caveat, that Criminal Defence Service Legal Aid isn’t the only source of income for the top criminal barristers: there’s private work as well! That should stop the top ten CDS barristers, earning from £663,000 to £957,000, from sinking much below the half a million a year net breadline.

It all gave Labour MP Andrew ‘Dismal’ Dismore the chance to lay into ‘bewigged fat cats’ while legal aid centres were starved of funds to do the bread-and butter work. Tuckers, the highest paid solicitors in 2007, received £8.5, from the Criminal Defence Service but a spokesman wailed, that we ‘lost money undertaking general crime work in the last financial year’. But the Legal Services Commission has now announced that after it had spent in 2007 £1.2 billion for criminal cases and £620 million for civil cases, that if there was jam today there was to be no jam tomorrow. Cuts would soon reduce the £1m a year criminal barristers to their knees.

The Ministry of Justice reported

At £38 per head of population, we spend more on legal aid in England and Wales than in any other country. This figure compares to between £3 and £4 per head in France and Germany, and around £8 per head in New Zealand and the Republic of Ireland -both countries with similar legal systems to ours. The £2 billion we spend each year is around the same as what we spend running our prisons.

 

Speaking of recent rises which will be stopped once the Carter reforms are put in place, the Ministry added,

Legal aid has been one of the fastest growing parts of the public sector over the past 25 years, with spending growing from £522m in 1982 – in today’s prices – to around £2 billion now: a real terms increase of approximately 5.7% per annum.

 

That doesn’t seem as bad as it might have been considering inflation generally but the comparative figures do pose questions. Why do we spend so much? And why does the junior end of the Criminal Bar picture itself as living on the brink of ruin? Is this true or is it that the Bar, like farmers, permanently moan about hard times? I think that it was Lord Woolf who complained a few year ago that some members of commercial chambers of a mere five or so years call were earning more than he was as a Law Lord. What really is the financial picture for the Bar? The work seems to be there and the profession increases apace. No one would say that judicial salaries in the High Court, the Court of Appeal, and the House of Lords are outrageously high but what of the generality of the Bar itself, which still continues to be the main provider of senior judicial candidates?

Anyway, back to the successful Mr Singh. Apparently Balbir Singh is fluent in Hindi, Punjabi and Urdu. I’m not sure what that contributes to his success as I’ve never viewed the Asian community in general as particularly criminal. But personally I congratulate his success and, my appalling linguistic skills notwithstanding, I wonder what ‘Teach Yourself …’ book I should be reading and practising. For now I’ll stick to Gaelic — Slainte! 

Richard 

 

 

 

UCLAN declines to provide information about past exam papers

The University of Central Lancashire (UCLAN) (Lancashire Law School) is one of a number of universities refusing to provide copies of past examination papers in criminal law.

My request made under the Freedom of Information Act was for copies of past criminal law examination papers set in 2005, 2006 and 2007.

Interestingly, UCLAN not only claims exemption under s43(2) – the ‘commercial interests’ exemption – discussed on another blog post – but also relies on:

1. Section 36.

This provides an exemption if disclosure of the information requested would… prejudice, or would be likely to … prejudice, the effective conduct of public affairs.’

UCLAN states that examination questions in law are ‘recycled regularly’ and that information about past exam questions is not provided at the beginning of a course.

(My request was made in November and the University responded in December.)

The exemption is subject to a public interest test and UCLAN claims that disclosure of the information requested “would not be in the public interest… as it would compromise the process of formative assessments”.

Advance knowledge of the content of previous questions would “affect the integrity of the assessment programme”.

Thus, UCLAN asserts, disclosure would “compromise the academic standards” of UCLAN by conferring an “unfair advantage”.

2. Section 21.

This exempts a public authority from disclosing information which is ‘reasonably accessible by other means’. By s 21(2)(a) ‘information may be reasonably accessible to the applicant even though it is accessible only on payment.’

UCLAN, relying on s 21, states that “some of the information… requested” is made available to UCLAN’s fee paying students “towards the end of a course” and so would be available to me “by enrolling on the course for which you are free to do so if you choose”.

(Whether this amounts to an unconditional offer of a place on the course is an interesting side issue. If it is, then a request for information refused on these terms might provide an alternative route on to the course for those who do not otherwise satisfy the university’s entry requirements.)

I recently made an internal appeal to UCLAN against this decision on the grounds, inter alia, that:

1. The fact that information will be provided on payment of the enrolment fee does not mean that it is ‘reasonably accessible’.

( I believe that the current standard fee for the full time LLB course is around £3070 but this may increase for 2008/9. Please contact UCLAN for current fees. I don’t know if it is possible to study part time and if so what the fee is.)

2. Re – the s 36 exemption. There would be no unfair advantage if the information requested was published as everyone would have access to it.

( I have also appealed against the s 43 exemption.)

I will let you know the outcome of the appeal.

Freedom of Information

Those of you who are regular readers of this blog will be aware that recently I sent a Freedom of Information Act request to UK universities asking them for information about past examination papers in criminal law.

Most universities have now provided the information and in due course I will publish some of my findings.

However, a number of universities, relying on one or more of the exemptions in the Act, have declined to provide the information requested.

In the hope that it might prove instructive about the workings of the Act and to assist those of you who are considering making your own requests for information I will be discussing the reasons offered by the universities for declining to provide the information, my grounds of appeal and, where appropriate, the decision of the Information Commissioner.

Diana and Dodi: The Opera

The Princess Diana/Dodi Fayed inquest is becoming such a farce that some members of the House of Lords want to see it brought to a speedy end.  Many of us must feel opposed, however, to any suggestion that matters about that tragic event should be swept under the carpet. Nonetheless, the testimony of Mohamed Fayed has been a disaster in all respects, not least to his own cause. Totally unfounded allegations delivered in a justifiably emotional but dismissive and aggressive fashion present him as more ranting than voicing legitimate doubts.

There may be those who, without subscribing to a complete conspiracy theory, have some sympathy with Mohamed Fayed’s loss of his son. They may even feel that something was sorely amiss with the sad events leading up to Diana’s last months. Surely, it would have been an embarrassment to have the mother of the future king, as the wife of Mohamed Fayed’s son, the father being seen as so discreditable as not justifying his being granted British citizenship. Diana certainly went out of her way to avenge the wrong done to her by Prince Charles’ long-standing affair with Camilla Parker-Bowles, bringing discredit to all in her fight.

The expense of this inquest being borne from the public purse is shocking. The Lawyer estimated (25 February 2008) at £10m. The barristers’ fees are said to be likely to reach almost £5m. Mohamed Fayed’s barristers will cost him about £3m. His own lawyer, Michael Mansfield QC, led one team, whilst Ian Croxford QC represented Mohamed’s Paris Hotel, the Ritz. Apparently both are being paid an hourly rate of £575, giving them in excess of £675,000 when the trial finishes its 32 week run in April. Leading counsel for the coroner is apparently being paid an hourly rate of £285, those for the Foreign Office, and for MI6 receiving £250 per hour.

Hourly fees are unusual. Mr Mansfield earns more than fifty-seven times than my very efficient cleaner. I shall leave the reader to decide whether this comparison has any point and whether he is worth it. It does seem like an awful lot, even allowing for his experience, his age, and his undoubted flair. Whether Mr Fayed’ s money is money well spent must be a matter for him. Mr Mansfield has a reputation for fighting for justice and, if his post mortem representation of Ruth Ellis is anything to go by, as a campaigner for lost causes. Anyway, if Mr Mansfield has been well rewarded for his efforts, perhaps he deserves every penny of it for having to put up with such a client. 

In many ways, this show is all over now. The fat man has sung. 

Richard 

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