Legal Issues of Intellectual Property Rights and

E–Learning and Digital Media
Volume 11, Number 3, 2014
www.wwwords.co.uk/ELEA
Legal Issues of Intellectual Property
Rights and Licensing for E-Learning
Content in the United Kingdom
AZADEH MEHRPOUYAN
Bharati Vidyapeeth University, Pune, India
GHASSEM KHADEM RAZAVI
University of Aix-Marseille III, Marseille, France
ABSTRACT This article focuses on the legal rules of intellectual property rights (IPR) in networked elearning. Its purpose is to act as an awareness-raising device about IPR, especially in the public-sector elearning community in the UK, by describing the relevant aspects of IPR, providing legal guidance on
IPR in e-learning, especially on the use of third-party materials, and, finally, persuading developers
about the potential benefits of including IPR management in their project planning and management
activities. Also, the authors discuss the IPR knowledge gap in e-learning in UK educational institutions.
Licensing and agreements that cover the transfer of copyright from one owner to another are
discussed. In the end, the authors recommend providing an educationally sound guide to networked
learning within the higher education structure based on the legal issues that the present article intends
to deal with for people who are going to enter the e-learning environment.
Introduction
Intellectual property rights (IPR) have until recently been a relatively obscure part of the e-learning
world, but they are now rapidly becoming crucial to future development, and with good reason. In
addition, they are in turn influenced by regulation of areas such as e-commerce. They must also be
considered in conjunction with data protection legislation and privacy considerations, as well as
relevant considerations about unsolicited electronic communications and possibly freedom of
information. e-Learning materials are expensive to create, so a lot of effort is currently being put
into developing ways to store them in an accessible manner in digital libraries and repositories to
enable people to find and reuse them with ease. IPR information is vital for digital libraries and
repositories as it records who owns the e-learning resource, who can access it and use it, and under
what conditions the resource is made available. The issue of IPR is one of growing importance and
seems to increasingly permeate discussions of e-learning (Duncan & Ekmekcioglu, 2003).
The technology that enables new types of digital publishing races ahead and the law often
appears to lag behind. However, there have been significant legal advances that should warn
against a cavalier approach to handling the rights which exist in materials. This is not a new
situation: the history of IPR law is one of adaptation to technical and commercial change. It is
important that the producers and consumers of content in e-learning have a clear idea of what they
want others to be able to do with the product of our labours and what they don’t want them to do.
In this sense, the business of e-learning is coming of age and joining the rest of the media industry.
E-learning programs are complex and expensive to devise, and they therefore represent
valuable assets that need to be protected and managed. However, many consider that there has
been a lack of awareness about IPR issues in e-learning in UK educational institutions, especially
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regarding the use of third-party materials. Closely connected to this problem has been a more
general lack of knowledge and expertise about IPRs and how to manage them. There is also a need
for training with regard to IPR issues in general and e-learning in particular. Anything that is
available tends to be confined to the library world. In addition, educational institutions need to
understand that the management of IPR has serious resource implications. This description of the
problem areas of IPR in e-learning is drawn from the report of a working group to investigate these
issues set up by the Higher Education Funding Council for England (HEFCE), the Standing
Conference of Principals (SCOP) and Universities UK. This report is heavily referenced in this
article, along with a guide, and is referred to as ‘the HEFCE report’ for brevity (HEFCE Report,
2012).
E-learning is in its early days, and many teaching staff are still developing all their own
teaching materials. An educational institution’s teaching materials are an important resource – a
form of ‘intellectual capital’ (Magrassi, 2008), Currently, most of this resource is locked in teachers’
and lecturers’ heads, filing cabinets and personal computer hard drives. As tools such as local and
national digital repositories come online and are developed, more and more of these valuable
resources are going to be stored and shared digitally. These resources are already subject to IPR
law, but storing and sharing them in this new and very public manner makes it important to ensure
that these resources comply with IPR law and can be protected by it. For those who want to share
their content with others, it is also important that they understand the legal environment that they
are operating in.
Discussion and Analysis
Intellectual property rights (IPR) is a broad term that refers to the legal protection available in
relation to certain property that is intangible that can be created by individuals. It is fair to say that
the law is lagging behind the digital technology that is changing the way that the creation and
publication of, as well as access to, the products of intellectual activity now happens. New
technology creates challenges that the law is responding to. But it would be a mistake to think that
the use and management of technology is unregulated or beyond the law.
The law regarding IPR is well established and has a history of changing to accommodate new
technologies and economic relationships; the first law governing copyright (the Statute of Anne of
1710, an act of the Parliament of Great Britain) was enacted to protect publishers using the recently
invented printing press from piracy. IPR law is fairly clear in terms of the principles and guidelines
that it embodies. However, the education sector is currently characterised by low levels of
awareness and understanding of IPR law and how it is applied to e-learning.
This article is written at a time of rapid transformation in the way that education is being
conducted in society, and digital technologies are providing powerful tools to enable change. But
technology alone is not responsible for this transformation. The main drivers of this change are
those connected with the trend towards a UK economy that is increasingly based on information
and knowledge. As in any period of change, there are different contesting visions of what the future
should be, and this applies as much to e-learning as it does to any other field of work.
E-learning is a rather vague and inadequate term to describe educational activity and means
many different things to different people. One useful definition has been developed by a group of
educators through a series of Economic and Social Research Council (ESRC) workshops; although
aimed at higher education it applies equally well elsewhere. Below is their short definition.
‘Networked learning’ is defined as learning in which information and communications technology
(ICT) is used to promote connections: between one learner and other learners; between learners
and tutors; and between a learning community and its learning resources (JISC-JCALT & CSALT,
2001).
Most of people in the educational sector have little to do with the law, and when they do, it is
often handled by specialists who are familiar with the subject and the terminology. In addition,
many in the public educational sector are traditionally not comfortable with thinking in terms of
who has ownership and control of the materials that they create in the course of their work. But in
other areas of professional work an involvement with and working knowledge of IPR law is fairly
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routine, such as for those involved in journalism, making TV programmes, creating software
products, writing, acting and so on.
One key thing to remember in IPR law is that the ‘P’ stands for property, and just as in the
rest of the legal system, someone either owns the property or can lay a claim to owning it.
Although much intellectual property may not be physically tangible, it can nevertheless be owned,
sold, rented and otherwise exploited by those with a legal right to do so. Unlike physical property,
it may also exist in more than one place at once – that is, it may be copied. The legal right
governing who may copy a piece of intellectual property, called copyright, is one of the most
important laws affecting e-learning. Before going any further, it is useful to briefly consider some of
the other laws and rights that govern IPR in the UK and elsewhere. These are summarised in
Figure 1.
Figure 1. Laws and rights that govern IPR in the United Kingdom.
The areas of IPR law that most affect e-learning content development are those of copyright and
moral rights, and it is on these that this guide concentrates.
1. Licences
There are two broad types of agreement that cover the transfer of copyright from one owner to the
other. According to Section 6 of the Joint Information Systems Committee (JISC) Guide [1], they
are:
• Assignments (or assignations in Scotland) – the actual ownership of the copyright is given over.
It can be limited in various ways or complete. To be valid, the assignment must be written.
• Licences – this gives no right of ownership but merely grants permission to undertake an act
with the work, which would otherwise be restricted.
In e-learning content development, assignments or licences may be used. This section will deal
with licences. Licences fall into a number of categories, including exclusive and non-exclusive.
Exclusive licences. An exclusive licence gives the licensee (the person who is given a licence by the
rights holder) the sole right, which no other person has, to undertake a specific act with the work,
which would otherwise be restricted. For example, the BBC might have an exclusive licence to
transmit a particular Hollywood film in the UK over a period of 9 months. During the period of
that 9-month licence no other rival TV network in the UK can transmit the same film.
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Non-exclusive licences. A non-exclusive licence grants the same right to different licensees for the
same kind of use of the work. An example would be two radio stations that are licensed to play the
same pop music single at the same time.
If a person is an e-learning content developer operating in the public sector applying to use
third-party material, he/she is probably only going to obtain permission to use the copyright work
in the form of a non-exclusive licence from the owner. There are two good reasons for this:
• This ‘costs’ the rights owner the least; and
• It is probably going to be quite adequate for the purpose.
Understanding licences. For some years the JISC has been developing model licences for the
educational sector to use with varying degrees of adaptation. At first sight, the terminology in a
typical licence may seem difficult to understand (many people tend to ‘switch off’ when faced with
such documents). But with a bit of background preparation and orientation, such as reading this
study and taking some time, licences will start to make more sense. First, we will supply some
background information on the JORUM (the UK’s largest open educational resources repository)
licence and project.[2] The JORUM licence, referred to in Appendix 1, was part of a trial exercise in
developing a national digital repository.[3] JORUM is the name given to the project set up to carry
out this exercise. The licence in Appendix 1 is a product of this trial, and the legal entity behind the
trial repository for IPR purposes is the University of Edinburgh. So in legal terms the actual
agreement is between the depositor and the University of Edinburgh. In this licence, the term
‘Depositor’ is used to refer to the person or institution that is putting a learning resource into the
repository; in reality, this will usually be an institution such as a university or college. Normally the
term ‘Licensor’ would be used instead of ‘Depositor’ to describe someone who has the right to
grant this kind of permission to use a resource. The JORUM licence continues to evolve, and the
commentary here is on a draft version. For details of the most up-to-date licence, content
developers should contact JORUM via their website at http://www.jorum.ac.uk/
A useful exercise is to use the commentary in Appendix 1 as a guide to help understand and
analyse the draft JORUM depositor licence that is contained in Appendix 1. The draft licence grants
permissions to the users of the JORUM to do certain things with the work, and it also states that
people have taken certain steps to clear the rights to any third-party materials people have
incorporated in their work. Notice that there is a section called Representations, Warranty, &
Indemnification. This is a very common and important part of such licences. This section states:
• That each party has the authority and rights to agree to the licence;
• That the depositor owns or has licensed all the IPR in the work;
• That the depositor warrants that if the work is published it will not break any UK laws and that
if it does the depositor will indemnify (i.e. protect and compensate) the JORUM (Edinburgh
University) from any loss, damage, cost or liability arising;
• That the depositor will notify the JORUM promptly, with details, if a claim is made against
people in connection with any third-party materials contained in the work.
This should give pause for thought – and it is meant to. A useful short guide to licences is Licensing
Digital Resources: how to avoid the legal pitfalls (Giavarra, 2012). This licensing guide has been
compiled in order to help a user understand the meaning and consequences of common clauses
contained in a licence. It provides an explanation of what licences are and lists useful tips on
negotiating the content of licences. It is suggested that people read this work before signing or
arranging any licences.
Drawing up a licence agreement. There are a number of options:
• Use a specialist lawyer or legal firm;
• Use an off-the-shelf standard licence;
• Use a standard licence and adapt it to your needs.
The first option is likely to be expensive, but might be suitable for large and complex
arrangements. Using a standard licence is the cheapest and most efficient option if it meets all
needs. Adapting a standard licence can be very useful if one, or an organisation, has the expertise to
do so. Bear in mind that developing a plain prose agreement first can greatly reduce any possible
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misunderstandings between the parties involved and can reduce legal costs and avoid wasting time
adapting a standard licence.
Ultimately professional lawyers must check any legal document such as a licence. It might be
negligent to do otherwise. It will save time and money if one can present them with a draft of a
plain English explanation of what one wants to do.
Granting a licence to allow others to use the materials. One could use a license such as the JORUM
licence as a template to draft new licences (as above, a lawyer should check the final version) to
allow others to use the materials. But a very economical solution to this task is to deposit the
materials in the national repository that will succeed the JORUM and refer the person making the
request to the repository. This also has the benefit of populating the repository with learning
materials.
Developing a licence on behalf of third parties to allow people to use their materials. It may be asked ‘why
should people draw up a licence agreement for someone else to allow them to use their materials?’
There are a number of good reasons:
• The owner of the copyright might not have the necessary expertise or be able to afford it;
• People are often going to be in a weak negotiating position as they might not be able to pay cash
for the rights;
• By offering to handle the time-consuming and potentially expensive process of creating a user
licence, people are saving the rights holder time, hassle and money;
• This is likely to improve people’s chances of a successful negotiation;
• It gives people the opportunity to set the IPR parameters of the licence – this is very important,
especially if they intend depositing the material in a repository (either local or national).
People can consider using an existing licence, such as the JORUM licence, as a template. There are
two good reasons for this:
1. It will make it easier to deposit people’s work in the national repository;
2. Using one licence document in this way simplifies people’s IPR procedures and reduces the
mental load involved.
Research Methodology
There are some new regulations and draft regulations that were looked at in depth with original
works in the e-learning field. This kind of work mostly involved the study of primary sources –
legislation and case law, as well as secondary literature in the area and in the theoretical/
conceptual dimensions of the research study. The research methodology of this study contains
references to law review articles, other relevant regulations or statutes, and, most importantly,
summaries of cases which discuss or interpret the particular cases in the study area of the present
research – the UK.
This study reviewed existing rules from a different perspective. In this area, the research study
has to acknowledge the contribution of existing research and then move on to examine how the
existing state of knowledge can be advanced by the present research. Those involved in this kind of
research can also benefit from looking at comparative analyses in other countries with similar
situations, and from studying relevant literature.
Conclusion
This article contains an overview of some of the key issues concerning IRP and licensing. It focuses
on the context of raising legal issues for content developers, indicating certain practices and giving
current information about the law. It examines the key legal points on IPR in e-learning, and
recommends that e-learning institutions should consider the following points when working with
content materials and their development and management:
• Implement the legal changes which may be required in terms of IPR ownership and the
associated relationships between those connected with IPR. This may involve the use of an
updated contract of employment in relation to new staff, the renegotiation of terms of existing
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contracts, the use of ad hoc agreements with staff and students in relation to particular activities
or projects, and the review of procurement terms and conditions. Legal consequences of
adopting an open educational resources approach should be considered according to updated
and latest legal rules.
• In parallel with the legal issues, address the cultural issues, sensitivities and emotions which,
naturally perhaps, often arise in relation to the feeling of ownership a creator has over his or her
creations. Providing an explanation of the institution’s approach, ensuring recognition and
reward as appropriate, and seeking participation and ‘buy-in’ are all likely to assist in the
successful introduction of changes.
• Ensure that the issues of copyright ownership, property rights and licensing of e-learning
content are determined, particularly for staff-produced materials. The managers of e-learning
institutions should follow updated legal guidance concerning IPR and licensing.
It is highly recommended that an educationally sound guide to networked learning within the
higher education structure be provided with reference to the legal issues covered by present article
for people who are going to enter the e-learning environment.
Note
[1] http://www.jisc.ac.uk/whatwedo/themes/informationenvironment/dner.aspx
[2] http://www.jisc.ac.uk/index.cfm?name=jorum_user
[3] http://www.jorum.ac.uk
References
Duncan, C. & Ekmekcioglu, C. (2003) Digital Libraries and Repositories, in A. Littlejohn (Ed.) Reusing Online
Resources: a sustainable approach to e-learning. London: Kogan Page.
Giavarra, Emanuella (2012) Licensing Digital Resources: how to avoid the legal pitfalls, 6th edn.
http://www.eblida.org/ecup/docs/licensing.htm
HEFCE Report (2012) Section 9. http://www.hefce.ac.uk/pubs/
JISC-JCALT & CSALT (2001) Effective Networked Learning in Higher Education: notes and guidelines. Lancaster:
JISC-JCALT & CSALT, Lancaster University. http://csalt.lancs.ac.uk/jisc/guidelines_final.doc
Magrassi, Paolo (2008) A Taxonomy of Intellectual Capital. Research Note COM-17-1985, Gartner.
AZADEH MEHRPOUYAN is a PhD graduate from Bharati Viyapeeth University, India. She has
15 years of experience teaching bachelor and master students in Iran, India, France and Canada.
Many of her articles have been published in international journals in the fields of English literature,
teaching and e-learning. Further, she is active as a researcher and speaker, and referees projects in
interdisciplinary fields. She is a member of the Elite, Researcher and Innovator Society and
Teaching English Language and Literature Society of Iran (TELLSI). Also, she has participated in
various international conferences, Olympiads and festivals in the United Kingdom, Malaysia, Iran,
Turkey, India and Bangladesh. Correspondence: [email protected]
GHASSEM KHADEM RAZAVI has a PhD in International Business Law from Aix-Marseille
University, France. He is a Faculty member of the Iranian Research Institute for Information
Science and Technology. He is also Member of the Paris and Tehran Bar Associations. As head of
the Department of Private Law at the International University of the Persian Gulf, he supervised
more than 50 theses of law. Correspondence: [email protected]
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