Legal issues relating to e-learning

(Adapted from the Ferl Practitioners’ Programme information sheets)

E-learning and the law

There are several legal issues around the use of e-learning in education of which you need to be aware. However, much of the information available constitutes pointers to good practice rather than statements of legal obligation. On most of the issues, if not all, you should have a simple institutional policy or set of guidelines. In general, even in cases where there is no relevant legislation, following a good practice policy should be the overriding aim. Where there is legislation, a good practice policy should promote awareness of and adherence to it. The most complex (and often overlapping) legal issues are found in the areas of copyright, data protection and licensing.

Copyright, intellectual property rights and licensing

These are some of the key points concerning this area of legislation in relation to e-learning:

• All original resources are covered by copyright, regardless of the existence of a copyright statement attached by the originator.

• There is an understanding of ‘fair use’ (unless specified otherwise) that allows reasonable use of materials for private study. Making multiple copies of resources without the express permission of the copyright owner, or a copyright statement acknowledging this as a fair use, is not acceptable.

• Copyright covers the original work of students. If this work is likely to be stored electronically, then encouraging students to add a simple copyright statement at the end would be a useful practice.

• The copyright for resources produced by staff in the context of their employment will normally belong to the employer.

• Internet resources usually carry a copyright statement. If you wish to reproduce the work, look for this statement first. If none exists, you cannot assume that you are free to copy the material. Contact the copyright owner for permission. On a website you will usually be able to find a postal address or feedback email address.

• In conjunction with your employer, always use a copyright statement with your materials to explain who can and cannot copy the materials.

• Downloading and storing copies of entire websites on a local server (known as ‘web-whacking’) breaches copyright unless prior permission has been sought and granted.

• When creating hyperlinks (the links that transfer you from one website to another), it is good practice to request permission from the site you wish to link to. If you have not sought permission, you would normally link to the home page to avoid representing their web resources out of context. The legal position on linking is unclear, but do try to avoid displaying the pages of other sites within a frame on your own site, since it may appear that the content is your own.

Copyright protection and digital rights management

Digital rights management (for online resources) and copyright protection are the systems used by content manufacturers to prevent illegal use and distribution of their paid-for materials. Owing to a recent change in copyright law, bringing it into line with the European Union’s Copyright Directive (enforced in December 2002), it will soon be illegal to copy offline materials such as DVDs or even to own the software that enables you to crack the copyright protection. Individuals sometimes copy DVDs to enable them to be played on a type of machine other the one intended by the manufacturer – for instance, a machine running Linux rather than Microsoft Windows applications.

Copyright and caching of content

Caches are used to store local copies of regularly accessed web pages and files closer to the user to reduce the load on the external connection to the internet. In principle, licensing and copyright problems may be encountered if you store multiple copies of files in multiple caches. For purchased material, content providers have varying opinions on the caching of their material. The simplest approach is to follow content providers’ guidelines and, where unsure, ask. Although caching may prove to be an issue, there are no well known cases of prosecution on these grounds.

Licensing

The licence is the legal statement of how you may utilise a copyrighted resource. In an educational setting, the licence will usually state the number of machines a piece of purchased software may be used on. Normally, educational establishments will need a site licence, a multi-user licence or many copies of single-user licences. Software and other resources must be used within the terms of the licence. Becta’s ICT Advice page on licensing (see ‘Further information’, below) gives more detail. Although aimed at schools, the content is relevant to all in the educational sector.

Plagiarism

Not only is plagiarism to be discouraged on academic grounds, offenders are also breaking copyright by refusing to acknowledge the true source of the material. Information on good practice in identifying and discouraging plagiarism can be found through JISC, which has established the JISC Plagiarism Advisory Service. The English Subject Centre also has a good collection of resources. Details of both websites are given in the ‘Further information’ section below.

Data Protection Act

The website of the Information Commissioner’s Office quotes eight principles of data protection that apply to all those processing and holding personal data. ‘Personal data’ encompasses both facts and opinions about an individual, and the Data Protection Act applies to any personal information held in a structured filing system. Data must be:

• fairly and lawfully processed
• processed for limited purposes
• adequate, relevant and not excessive
• accurate
• not kept longer than necessary
• processed in accordance with the data subject’s rights
• secure
• not transferred to countries without adequate protection.

Source: Information Commissioner’s website (copyright: The Information Commissioner).

There is a right of access for individuals to view any data held about them within 40 days of submission of a written request. All references to any other individual must first be removed. You can find advice on the implications of the Data Protection Act for further education on the JISC website (see ‘Further information’, below).

Technical security

The Data Protection Act places an onus on owners and managers of educational networks to keep personal and sensitive information secure. Best efforts must be made to ensure that networks are protected by passwords, firewalls and anti-virus software, and, if using wireless networks, that the level of encryption used to transfer data is sufficient to discourage hacking.

Those responsible for educational networks may have a level of liability, as yet untested in UK courts, if they fail to protect networks against use by spammers (individuals that send mass emails without the recipients’ permission) and those wishing to propagate viruses. An insecure (or open-relay) mail server is not recommended.

A strong password policy is essential practice for staff and students. No level of system security can mitigate the threat posed by openly available or irregularly updated passwords. Your system manager, maintenance technician or IT manager has a responsibility to keep the network secure, and you have a responsibility to comply with their guidance. Remote access to internal networks has its own problems (for instance, accessing a network from home), and care should be taken to ensure that remote access is properly secure.

A useful guide to good practice in securing your networks covering firewalls, password policy and filtering can be found on Becta’s ICT Advice website (see ‘Further information’ below).

Freedom of Information Act

From 29 February 2004 all public bodies, including educational institutions, have to comply with the Freedom of Information Act that grants rights of access to public authority information relating to the authorities’ public functions. There are two main responsibilities. These are:

• to produce a guide to publicly available information about an institution
• to respond to individual requests for information.

See the website of the Information Commissioner’s Office – ‘Freedom of Information Act’ section – for more information (see ‘Further information’ below).

Acceptable use policies

All educational establishments should have and disseminate an acceptable use policy for staff and learners. This should act as a good practice guide making users aware of their legal obligations regarding use of e-learning and the internet. A good example of how to formulate an acceptable use policy for UK online centres is given on the DfES’s Superhighway Safety website (see ‘Further information’ below). The example draws attention to illegal acts such as using a computer to perpetrate credit card fraud, spread viruses, hack into other computers, access or transmit illegal materials or download copyrighted materials. Information on safe, legal and acceptable use of e-learning for younger children in schools has a different slant, and looks at issues such as filtering websites and monitoring use of the internet more closely.

Health and Safety

Health and safety regulations require establishments using ICT to assess and reduce risk, to make sure that work is planned to allow breaks or changes of activity, to offer information and training, and to provide eye tests on request. Employers have the legal responsibility for these health and safety requirements. In practice, tutors will need to ensure that ICT equipment is used correctly and safely.
You can find further advice on the Becta’s schools website (see ‘Further information’ below).

Further information

Copyright

• Becta schools, ‘Intellectual property, copyright and school internet use’
• Copyright Licensing Authority (leaflets on common copyright concerns accessed through the ‘Copyright Village’ section on the website) 
• JISC briefing paper ‘Copyright and Intellectual Property Rights'

Licensing

• Becta schools, 'Licensing'

Plagiarism

• JISC Plagiarism Advisory Service
  

Data Protection Act

• Information Commissioner’s Office, data protection information
  
• JISC Legal Information Service, effect of data protection legislation on further and higher education

Technical security

• Becta schools, firewalls

Freedom of Information Act

• Information Commissioner’s Office, Freedom of Information Act

Acceptable use policies

• DfES Superhighway Safety, acceptable use policies

Health and safety

• Becta schools, ‘How to Ensure the Safe Use of ICT in Schools’
• Health & Safety Executive, interpretation of requirements for employers
• The Electricity at Work Regulations 1989
• The Health and Safety (Display Screen Equipment) Regulations 1992