This discussion, hosted by Cathy McNickle from the Legal Issues in Flexible Learning project,  took place between 2 – 10 December 2003. This forum did not seek to disperse formal legal advice, but was rather a forum to introduce some of the legal implications for elearning and for drawing attention to potential problem areas. This resource summarises the issues covered in the discussion.

There are many issues to consider that have may have legal implications for e-learning.

Some of the most misunderstood areas of elearning and the law concern:

• The difference between hardcopy and electronic copyright licences and the restrictions/requirements/entitlements of these and the development of resources to put on the internet/intranet
• Acknowledging the authorship of resources that we have gathered up from a lot of areas over the years - the Morals Rights Act covers this and requires that authorship is acknowledged however finding the original author of some material is very difficult and time consuming
• Getting copyright permission for materials that people want to use off the net
• the use of graphics, images etc and the copyright implications
• The copyright requirements for music, CDs etc
• Also not well realised is the enormous resources we have available to us for guidance on so many of these areas, although time consuming
• Intellectual property - ownership of and protection of is another area that is really only recently being considered .

For instance, are you aware of:

• the difference in copying hardcopy material and electronic material and the different licencing agreements that your organisation has?
• the copyright restrictions for music, graphics and images?

Do you:

• ensure that you are either acknowledging the resources you are using to comply with the Moral Rights Act and /or getting permission from the author to use the material?
• use active links, homepages and deeplink? If so, are you aware of ways you can protect your institute/organisation from potential copyright breaches?
• have a process whereby those uploading material have to acknowledge that the material is copyright cleared?
• realise that if you change the proportion of a logo that you are breaching Trades Mark law?
• have measures in place to protect your intellectual property?
• ensure that you have adequately covered the contractual arrangements for ownership of intellectual property when commissioning resources?
• have strategies in place for staff to ensure compliance of copyright?
• have in place strategies to inform staff and students of their copyright responsibilities and obligations?

Privacy Laws
Privacy laws dictate how organisations must collect, store, access, use and disclose personal information.

Do you

• have a Privacy policy for your website and email used by staff and students?

Did you know that

• if student data is being collected for statistical purposes that you need to comply with Privacy laws?
• if someone is collecting information on a particular student/s you also need to be familiar with the Freedom of Information Act for Commonwealth and your specific state/territory legislative requirements
• if you are monitoring your website and email that the users need to know that for you to comply with Privacy law?
• if you are using a discussion board/chat or email with students and saving this and using this later that you need to tell the students your intention at the start of the course to comply with the Privacy legislation? Examples of privacy issues have been asked by participants and can be found on Q&A on the flexiblelearning.net.au/legal site
• if you use a photograph of someone who can be recognised without their consent that you are breaching the Privacy Act?

Access and Equity
Does your organisation provide some guidelines for the provision of access and equity requirements? www.hreoc.gov.au

eCommerce
Some managers have found that they need to know about legal issues associated with interstate and international dealings, Internet and e-commerce, and competition law.

Are your students able to enrol online, pay fees online or are any of the staff purchasing resources online?

If so:

• Are you familiar with the Electronic Transactions Act that outlines e-commerce. A framework for this can be found on the National Office for the Information Economy site - www.noie.gov.au  or www.govonline.gov.au.
• Do you realise that you need to provide your students with a range of choices for payment?

Developing online content
If you are developing content or purchasing online, you need to know that the content of flexible learning materials could contravene the law or result in legal action because it’s defamatory, obscene, discriminatory or incites violence.

Do you know what measures to take to protect yourself if you are developing resource content that has potential dangerous ramifications?

Are you familiar with

• Anti-Discrimination and Human Rights and Equal Opportunity legislation and the Broadcasting Services Act requirements for digital material? More information on these can be found on: www.hreoc.gov.au ; www.aba.gov.au or www.dcita.gov.au
• access and equity requirements for website developments? www.hreoc.gov.au; www.dcita.gov.au; www.noie.gov.au.
   
  Do you ensure that any contractual arrangements that you have with commissioned developers includes details outlining the intellectual property ownership and copyright clearance requirements?

If you are purchasing online you need to know about contracts

Librarians are often asked about or are assigned the responsibility of governing copyright and intellectual property. They’re often recognised within their VET organisation as an essential resource in this area.

• Are you aware of the contractual implications of the click-wrap contract? For example if you are purchasing online journals from an international organisation and for some reason that contract is disputed that it could be resolved in a foreign court?
• Are you indexing and placing material on the website? If so, are you aware of the copyright responsibilities?

Question:  Who owns an online resource after it is developed? Is it the institution for whom you work or is it you? (I think USA Courts have held that it is the employee not the employer?).

Answer:  The US have different Copyright laws to Australia.

Whilst in most circumstances if we are employed by an organisation and develop material for that organisation it is the organisation who owns the material. BUT, this is not as cut and dried as it may seem. There are circumstances where this may vary.

For more information on Legal Issues in Flexible Learning, visit the Framework website:

http://flexiblelearning.net.au/projects/legalissues.htm