Copyright in My School website content
Dear FOI Officer,
Background
------------
In an article titled "My School warned off Copyright" in The Australian newspaper of 1 August 2011, Justine Ferrari (the national education correspondent) wrote: "The agency behind the My School website has conceded legal action to prevent the media publishing league tables ranking schools is likely to fail. Legal advice provided to the Australian Curriculum Assessment and Reporting Authority says the grounds for suing media organisations for breaching copyright are tenuous. In a briefing to education ministers, ACARA says it does not have sufficient grounds to take legal action against any newspaper at this stage, ..."
Request
--------
My request is for documents relating to the copyright issue described in that newspaper article.
I am most interested in any document or documents that might show the current ACARA position with regard to copyright, whether that position is the same as the one about which education ministers were allegedly briefed, or a more recently adopted position. I am also interested in the legal reasons for adopting that position. I'm interested here in the more general issue of the Terms of Use of the website.
Naturally I am not seeking a copy of the actual legal advice but I might seek a copy of a document that contains a brief summary of the legal position to either education ministers or board members. Alternatively, it might be obvious how The Australian obtained the information in the article, and to seek a copy of any relevant document to which they obtained access.
While I anticipate that there is likely to be a specific series of ACARA files relating to copyright and the MySchool website, I am unsure how to frame my request to keep search and retrieval time, and ultimately the decision time, within managable bounds. Would it be helpful, for example, to frame it in terms of keywords or words that a document must contain (useful if ACARA uses a system like TRIM but potentially useless otherwise)? And would that be sufficient with a time range from 2010 to now, or would it still be too expansive.
If it is convenient for you to do so, please treat this as a request for access under administrative arrangements, at least until we can sort out how I should frame the request better! With that in mind, I would appreciate any advice you can offer. If you feel that it is necessary to treat this as a formal request under the FOI Act from the start, please do so.
Yours faithfully,
Mark R. Diamond
Dear FOI Officer,
This is a follow-up to my request of earlier today regarding documents relating to copyright and the MySchool website.
I'm writing to correct an error in my email (I seem to have a habit of this!). There is a sentence from which I accidentally left out the word "not". I intended to say ... "I'm NOT interested here in the more general issue of the Terms of Use of the website." I apologise for any confusion.
Yours faithfully,
Mark R. Diamond
Dear Mr Matheson,
Copyright in My School website content
Your reference: F13/567-3
Applicant: Mark R. Diamond
--------------------------------------
I refer both to my email of 6 February 2015 and to the reply from ACARA of 26 February 2015 regarding my request for administrative access to documents relating to copyright in the content of the My School website.
First, thank you very much for detail of the response. It has helped me immensely to clarify exactly what it is that I am interested in. In your reply, you mentioned three reasonable interpretations of my request, namely to take it as a request for information about (i) any change in ACARA's position from that outlined in an article in the newspaper The Australian on 1 August 2011, (ii) ACARA's position generally regarding copyright in relation to the publication by others of detailed rankings of schools, or (iii) various causes of action that Acara might have in relation to the publication by others of detailed rankings of schools. It is a variation of the second of those interpretations that I concerns me, namely ACARA's position generally regarding copyright in the data content of the My School website, independent of whether it is used by others to publish detailed rankings of schools. It is in the light of the information that you have provided that I would like now to clarify my request in the terms that follow.
(1) I seek access to the document or documents described below. If it is convenient for you to treat this as a request for access under administrative arrangements please do so; if not, please deal with it as a formal request under the Freedom of Information Act 1982.
(2) In the broadest terms, I seek access to documents that show ACARA's position generally regarding copyright in the data content of the My School website, regardless of whether the content is used by others to publish detailed rankings of schools. Examples, intended to expand but not restrict this request would include the following:
(2a) documents that refer to the case of IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (22 April 2009) (http://www.austlii.edu.au/au/cases/cth/h...) or to the case of Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (http://www.austlii.edu.au/au/cases/cth/F...).
(2b) documents that were created for the purpose of briefing officers or ministers on matters of copyright in the data content of the My School website data, whether or not they were used for the purpose.
(2c) documents that were used for the purpose of briefing officers or ministers on matters of copyright in the data content of the My School website data, whether or not they were created for the purpose.
(3) My earlier request excluded documents that related to legal advice. I wish explicitly to remove the exclusion from this request, not because I anticipate that ACARA will give access to its legal advice but simply to ensure that relevant documents are caught within the scope of the request and that a decision is made in relation to them.
Thank you again for the considerable assistance that gave in your earlier reply.
Yours sincerely,
Mark R. Diamond
Dear Mr Matheson,
Copyright in My School website content
Your reference: F13/567-4
Applicant: Mark R. Diamond
--------------------------------------
Many thanks to you and Robyn Ziino for the letter from ACARA dated 1 April 2015. Yet again, you have been of great assistance.
I wish to accept the suggestion that I narrow the scope of my request to encompass only the two documents listed at 3A and 3B on page 2 of the aforementioned letter; namely, (a) the legal advice from the Australian Government Solicitor to ACARA dated 28 April 2011, and (b) an ACARA paper to the Standing Council for School Education and Early Childhood dated 8 July 2011, relevant to the media article in the Australian newspaper.
Please treat this letter as a formal application under the FOI Act.
Yours sincerely,
Mark R. Diamond
p.s. Best wishes for a happy Easter.
Dear Mr Matheson,
Thank your for your email of 4 May 2015 and for the (ironically amusing) decision letter from Robyn Ziino refusing my application for access to the documents I requested.
Since my main purpose in pursuing the FOI request has been to determine the answer to two very simple questions it might be easier to avoid the FOI avenue entirely and ask the questions directly. First, does ACARA claim that it holds copyright in all or any of the data presented on the My School website? Second, does ACARA have any objection, on the basis of a claim of copyright, to the public reproduction of any or all of the school-related information on the My School website?
Given that ACARA clearly has an informed view of the matter, and given the public desire for greater openness and transparency with regard to schools, I would be very grateful for an answer before 5 Jnuue 2015.
Yours sincerely,
Mark R. Diamond
Mark R. Diamond left an annotation ()
Rereading ACARA's response to my request, I'm struck by how (deliberately?) uninformative it is. Instead of saying, for example, that ACARA relies of section XXX of the Copyright Act to claim ownership of copyright in the MySchool website content, the reply has some waffle about relying on "more than one area of law (including the Copyright Act)".
Mention of the Act gives the reply a gleam of veracity, but it would have been more directly honest to say, "We haven't a clue whether we can claim copyright in the MySchool Information but we're hoping that buried somewhere in the 500 pages and 400+ sections of the Copyright Act, there is something that we might be able to rely on. More importantly though, we hope we can bully people into not pursuing this line of enquiry."
Mark R. Diamond left an annotation ()
If one follows the course of this FOI request, one sees that I started out with very broad request for documents related to copyright in the information on the My School website (http://www.myschool.edu.au). I had hoped that the process of negotiating with ACARA to limit the scope of the request would lead to ACARA identifiying at least one document that they would be willing to release. Instead, ACARA helped me, if that is the correct expression, to limit the request to two exempt documents (!) without ever indicating whether or not they claim copyright in the My School information.
That seems like a very foolish thing for an agency to do. If ACARA is unwilling to assert its copyright when asked, then they might have a much harder time in pursuing an action for breach of copyright if, say, a not-for-profit organisation were to publish the information. But ACARA might claim that it was never asked about copyright directly ... hence my latest email.