My Lords, I am grateful to the noble Baroness and the noble Lords for tabling these amendments. I understand their concerns and hope that I might be able to provide an explanation that will put their mind at rest.
All these amendments relate to the copyright measures in Schedule 1. I know that how we implement the copyright measures is a cause for concern for awarding organisations, but it is important to understand that we would not be proposing these measures were they not vital for the success of the technical education reforms. I reassure noble Lords, on the record, that the legislation as set out in the Bill ensures that there is already a substantial amount of flexibility in how to implement the new system.
I should also say that it is not our intention to introduce legislation that disadvantages awarding organisations. They make a huge contribution and play a vital role in our technical education system, and we will continue to work with them to implement the reforms in the most appropriate and sensible manner. That work is ongoing and we are working with stakeholders to develop a commercial strategy that sets out in more detail how we will ensure a competitive and well-managed market for technical education qualifications. The Bill as drafted already allows us to do this.
I will take each amendment in turn. Amendment 24 would mean that the Institute for Apprenticeships could approve a technical qualification only when it had identified documents relating to,
“standards and common qualification criteria”,
and that these documents should be subject to the copyright transfer. As drafted, the legislation requires that copyright should apply to “relevant course documents”, by which we mean documents relating to the teaching and assessment of the qualifications. The Bill allows the institute the flexibility to define what is meant by “relevant course documents”. This will form part of the ongoing work to determine exactly how the measures will be implemented.
If the institute does not own the copyright for relevant course documents that are central to the delivery and assessment of a qualification, the reforms to technical education will be substantially undermined. There are a number of reasons for this. First, the new qualifications will be based on occupational standards and outline qualification content that have been developed by employers as convened by the institute. The institute will own the copyright for these. Documents relating to the teaching and assessment of qualifications that are developed by the awarding organisations will be extensions of these original documents.
Furthermore, the licensing model will succeed only if there is continuity in the system. Our intention is that, at the end of a licence period—and indeed if an organisation happens to fall into financial difficulties—there will be a new organisation, and the incoming organisation should not have to develop a completely new set of qualification documents, when the existing documents are likely to continue to be relevant or require only minor updating. In addition, it would simply not be a good use of taxpayers’ money to be paying for the development of a full suite of new materials every few years. Indeed, this defeats one of the aims of these reforms. The institute will make sure that the terms of the licence reflect the costs of developing and delivering a qualification. We have a duty to make sure that our skills system works in the interests of students and employers, and we have a responsibility to do so in the most cost-effective manner.
Amendment 25 would require the institute to make appropriate inquiries into the persons entitled to a right or interest in any copyright that could transfer. While I appreciate the intention behind the proposed changes, I hope to persuade noble Lords that it is unnecessary. New Section A2DA allows the institute, if it considers it appropriate, to approve a technical education qualification. As the legislation is currently drafted, the copyright of relevant course documents would transfer to the institute.
We recognise that there might be multiple contributors to the development of a technical education qualification, and that they are likely to want a say in matters that relate to their particular part. It would clearly be impracticable for the institute to obtain the individual consent of multiple contributors—it may not know the identity of many and they may have been subcontractors. We therefore expect that the organisation granted a licence to deliver a qualification would ensure that the authors of documents have given their consent.
The provisions as drafted already allow for the intention behind the amendment to be achieved. It requires that the institute is satisfied that each person who it thinks is entitled to a right or interest in the copyright agrees to that right or interest being transferred to the institute. We expect this to be part of the licensing arrangements too. We do not think the institute could not be satisfied that persons have agreed to the transfer unless it has received the information, which may necessitate an inquiry. Therefore, the amendment does not add anything.
Amendment 26 would replace “transferred” with “assigned”. Taken in isolation, we accept that this is unlikely to have any material effect on the proposed measures relating to copyright. However, the measure makes a similar provision to the transfer of copyright for relevant course documents as we have already done for the transfer of standards and apprenticeship assessment plans. The use of the term “transferred” in both measures is therefore designed to assure the reader that these provisions are consistent with each other.
We anticipate that the institute will hold an open competition inviting organisations to submit outline proposals to develop a qualification against pre-set criteria. Once the qualification is developed in line with the institute’s requirements, full approval would be granted with certain terms and conditions attached, including in relation to copyright of the documents defined as “relevant course documents”. The contract is likely to be a concession agreement, whereby the successful organisation enters into an agreement with the institute to have the exclusive right to offer the qualification for the duration of the contract period. At the end of the approval period, the institute would run another open competition, giving both the incumbent and other organisations the opportunity to put forward a bid.
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I am well aware that this is very different from the arrangements that currently exist. Officials from the Department for Education are engaged in a series of discussions with awarding organisations to make sure that their views help influence the detail. We recognise that they have a great deal of expertise that will be invaluable when shaping the reformed system.
I am grateful to my noble friend Lord Lucas for tabling Amendment 27. While I appreciate the intention behind the proposed change I hope that, after I have outlined my concerns, he will feel free not to press the amendment. As we have heard, there are already 21,000 registered qualifications offered by over 150 different awarding organisations—the system is very confusing. To address this, we envisage putting in place only one technical qualification for each occupation or cluster of occupations within a route. We also intend to grant exclusive licences for the development of these qualifications. Although as currently worded, the Bill does not specify that the institute should approve only one technical education qualification per occupation or cluster of occupations, in practice this is how we envisage the institute will operate. As the technical education reforms are introduced, and new qualifications are developed and delivered, we will make periodic
assessments as to how well they are meeting our original policy aims. We therefore want to keep an open mind and allow flexibility for any changes that may be necessary in the future. The current wording in the Bill will enable changes to practice to be introduced without the need to amend legislation.
Amendment 29 seeks to change the documents for which copyright would transfer to the institute upon approval of a technical qualification. As I have already said, there are very good reasons why copyright for qualification documents should reside with the institute. It is also important to be clear that copyright is likely to apply to only a few key documents, and certainly not to awarding organisations’ systems or processes. The institute will need to own the IP of documents that relate directly to the teaching and assessment of the qualification; for example, the qualification specification and assessment materials. We do not envisage that it will have any interest in other materials, such as those designed to support teachers or back-office systems.
In developing the licensing arrangements, the institute will need to ensure that the qualification fee paid by colleges to the awarding organisation reflects both the up-front costs of developing materials and the ongoing delivery costs. We want awarding organisations to be able to see a return on their investment.
In previous debates we have explained that the institute is expressly allowed in new Section A2IA to grant a licence or an assignment back to the awarding organisation or to other persons for use of the materials that are the subject of copyright. This would enable that organisation to use those materials for other purposes. For example, we know that some awarding organisations sell their qualifications overseas. We understand awarding organisations’ interests in that area. Nothing in the Bill prevents awarding organisations continuing to sell their qualifications abroad, and we have no plans to stop them doing so.
I turn finally to Amendments 30, 31 and 32, which were tabled during Committee, and indeed in the House of Commons. The first amendment would see the institute given an express power to grant a licence for use of the copyright to more than one person. The second would see the institute able to assign a right or interest in the copyright to more than one person. I would make the same point we made in Committee: the legislation already allows for this. To be as clear as possible, if the institute decides that it is appropriate to transfer copyright to multiple awarding organisations or consortia, the Bill as drafted already enables them to do that. Amendment 33, on copyright, is very similar to others in that it seeks to change the scope of the documents that would be subject to copyright by the institute.
I hope that I have explained that the reforms to the skills system will succeed only if the institute retains copyright of relevant course documents. In making such significant changes to technical education, it is incumbent on us all to make sure that we prioritise the needs of employers and of students. There is, however, a great deal of flexibility within the Bill for the institute to make arrangements as it sees fit, and I firmly believe that we should trust it to make decisions that
are for the good of the skills system. I therefore hope that my noble friend Lord Lucas and the noble Baroness, Lady Garden, will be sufficiently reassured not to press their amendments.