Legal issues such as copyright, data protection, liability, e-commerce and disability discrimination are now impacting on our deployment of online learning environments. Some of these issues, for example accessibility, have achieved high levels of publicity but, in general, our knowledge in the sector in these areas is patchy, especially with regard to the responsibilities faced by online learning practitioners. The aim of the JISC Legal conference was to identify best practice in these areas and to consider practical steps to ensure legal compliance.
Dr Anne Wright one of the two keynote speakers set the scene on day one of the conference by outlining the role and importance of government strategy in providing a framework for online learning in the further and higher education communities (FE and HE). One example of this is government support for the development of a lifelong Personalised Learning Environment (PLE). This will be a personal online learning space where every student can store learning materials and record achievements. It is hoped that in the future that this will be more than a digital storage place but an area which remembers a student’s interests and provides alerts to relevant learning possibilities (DFES, 2005).
The second keynote speaker was Jon Fell of Pinsent Masons solicitors who outlined some of the legal issues associated with implementing such a strategy; these were discussed in more detail as the conference progressed. As well as copyright, he also spoke about the importance of authentication: verifying student identity in the online environment, for example, for online assessment purposes. Solutions to this had to be user-friendly but robust, for example, something a student is familiar with, such as user identification and password. These may also be combined with an enhanced authentication process such as a retinal scan. Jon finished by stating in general terms what issues an institution needed to address to manage legal compliance in the online environment. These may include, for instance:
• third party materials;
• contracts for example, with developers, staff;
• third party rights;
• internal policies and procedures;
• content management.
Specific themes arose through the conference which reinforced the keynote speeches: The day one themes were copyright and data protection.
Copyright is not a new issue for the academic community but concern persists regarding copyright in relation to online learning environments. In his presentation Graham Cornish set about exploring many of the myths that surround copyright especially when using materials developed by others that are held in an online environment. His presentation provided some food for thought in his assertion that in most cases some form of permission will be required to place third-party material into a Virtual Learning Environment (VLE) and that this will increasingly be achieved via licensing. This is because the law provides very little scope for using third-party material under fair dealing or the copyright educational exceptions and it is often too costly and time consuming to obtain individual consents.
This led on to Sol Picciotto who continued the copyright session by discussing the potential for licensing authorities - such as the Copyright Licensing Agency (CLA) and the Educational Recording Agency (ERA)¬ - to assist with copyright, and by updating us on the progress of the new CLA digitisation licence for HE. (FE already has a licence under trial with the CLA). Sol took us through the likely main provisions of the proposed digitisation licence but with the proviso that negotiations were still ongoing. The new licence, when agreed, will allow HE institutions to make digital copies by scanning paper-based materials or duplicating electronic resources. Comprehensive records of digitised materials made and/or used by staff and students will be required. These records should be sent every six months to the CLA who may conduct audit visits. Sol also touched on the other available licences, for example, the ERA and also on other digital source material licensed through JISC. He also mooted the possibility of a future over-arching FE/HE joint licence.
Jane Harris’ comment on this has resonance with many across the FE and HE communities:
“All the information on copyright and IPR which threaded throughout the conference was useful to me [as] we not only write a great deal of materials ourselves, but we actively encourage our students and teachers to upload their learning objects, post to communities and participate in chat - so there is much for me to check over here!”
As Lia Papachristou states it is often necessary to work in collaboration to effectively deal with copyright issues:
“The E-Learning team at Swansea University is currently liaising with the subject librarians to raise awareness on issues regarding copyright and accessibility. I am involved in the preparation of a comprehensive FAQ site that will address most staff queries regarding copyright material and Blackboard, our VLE. The University is also currently reviewing its Intellectual Property Rights policy (for staff IPR) and we are working closely with Human Resources to ensure that the new policy takes into consideration materials developed for our VLE.”
Carlisle George provided an information-packed paper focussing on the rights of users and data protection. It is essential that all information about the user is processed in a transparent way and is not excessive. In addition, the information must be accurate and held securely. Users should be able to access their information and should be confident that that there is no unauthorised transfer of data to other databases. With regard to online learning environments this is particularly important, for example, in the case of summative online assessments conducted by automatic means when students have the right to object and question the processing.
Day One closed with four breakout sessions providing the opportunity to look at case studies on VLE implementation.
Liability for universities can encompass many areas, for example, liability for injury to an employee through unsafe work practices where the employee could sue for breach of duty and sue for damages for injury caused. Liability could also include harm caused to someone’s reputation through the posting of a defaming notice on a university website. Day two started with a comprehensive and entertaining look by Gavin Sutter at what institutional liability can arise regarding the content which appears in an online learning environment and what can be done to reduce the risk. Inevitably, problems do arise and they must be dealt with immediately. These include anonymous harassment in discussion boards; copyright infringement; obscenity and distribution of inappropriate but legal materials or linking to legal and/or illegal content. This raises the issue of monitoring what is stored and available online for the specific purpose of checking for inappropriate materials, and here it is interpreted that monitoring for defamation purposes is the same as editing, and therefore increases the risk of liability falling on the institution if action is taken because of materials stored on the online system. In the case of outsourced provision of online learning environments, such as that being considered by the University of the Arts London with the hosting of Blackboard, this is an issue to be clarified in the contract between the institution and the outsourcing provider.
Jason Campbell of JISC Legal discussed the importance of contracts between institutions and students that are fundamental to the successful operation of e-commerce in any institution. This is an area driven by a raft of consumer and other legislation; for example, these laws will apply where universities receive online payment for courses, for materials, or for accommodation bookings. Action points for universities include reviewing what goods and services are sold online and ensuring such schemes comply with the legal requirements. Adequate information, in durable form, should also be given. Mechanisms also need to be in place to deal with cancellation of orders, and staff need to be aware that online purchasing or payment needs consultation to ensure compliance with the law. Issues relating to cookies were also considered. :further information about cookie laws and a guide to deleting and controlling cookies is available at: www.aboutcookies.org.
Although this has been a high profile issue over the past few years, not all staff are fully aware of its impact on their practices. Martin Sloane’s presentation covered the main points of the Disability and Discrimination Act (DDA) and the Special Educational Needs and Disability Act (SENDA), and emphasised that accessibility issues should not solely be acted upon to improve the situation for some students; if implemented properly, accessibility guidelines will improve the situation for all, particularly where online learning environments are concerned.
Technical matters that are important in the light of legal requirements were raised throughout the conference including:
• adequate network security;
• access control lists;
• appropriate firewall and proxy server provision;
• anti-virus and anti-spyware software;
• strong password measures;
• knowledge partitioning;
• physical access restriction.
However, these need to be linked to organisational practices, for example, clarification of rights and access in contracts; implementation of role-based security; and, importantly, policies on third party disclosure.
Alan Cameron of JISC infoNet rounded off the speakers session with a presentation on how managing records and information systems aids in legal compliance. Gavin, Martin and Jason then led breakout sessions to discuss their areas of expertise in more detail with delegates.
Conclusions and looking to the future
The conference provided an opportunity for much discussion but could not provide definite answers to all of the given problems and situations. It left delegates pondering questions on policies and procedures that need to be put in place or updated within their institutions. For example, as Jane Harris stated:
“I do believe that all sectors of education need to be alert to the growing use of e-portfolios - this will warrant a serious reappraisal of how the sectors work in conjunction with one another on behalf of their students. I also feel that the implications of cross-institution online work are not fully recognised by individual institutions yet. This type of online co-operation between institutions will become increasingly common, and it is my belief they will need to be aware of their statutory obligations in terms of dealing with materials or content posted by students and staff from other institutions.”
There can be little doubt that educational institutions choosing to ignore the law or unsure of the law do so at their peril. It is essential that institutions act now to ensure that the online activities of their staff and students are conducted legally.
The papers from the conference will be available on the JISC Legal website shortly at www.jisclegal.ac.uk/events.htm. In addition, the following papers below were produced and published in association with Pinsent Masons - www.pinsentmasons.com/ for the conference and are available to download from the JISC Legal website at: www.jisclegal.ac.uk/publications/elearningseries.htm
• Copyright Law for e-Learning Authors
• Copyright Licensing for e-Learning Authors
• e-Commerce Law for Web Administrators
• Data Protection Law for e-Learning Administrators
• Accessibility Law for e-Learning Authors.
Additional sources of information on the topics discussed at the conference are available from the publications and other pages of the JISC Legal website at http://www.jisclegal.ac.uk/.
Department for education and skills (2005) Harnessing Technology: e-Strategy. www.successforall.gov.uk/index.cfm?pg=143
Evan Dickerson, e-Learning Consultant, ITRDU, University of the Arts London
With thanks to the following for their contributions:
Lia Papachristou, MLE Development Officer, University of Wales Swansea L.Papachristou@swansea.ac.uk
Jane Harris, Mentor Manager, www.virtual-workspace.com
Paul Russell, Multimedia and CAL Officer PMS, University of Plymouth