eLearning: Can educational content be owned?
Ivan Pogarčić1, Lidija Oštarić Pogarčić2, Ivana Žiljak3
1Polytechnic of Rijeka, , Croatia
2County Court of Rijeka , , Croatia
3Faculty of Graphic Arts , ,Croatia
Abstract: Two inseparable processes of teaching and learning make an entity. Their concrete realisation is usually referred as education. Teaching as uniquely meaningful and object-organised system can be observed as a realisation of relationships between its basic elements: students and teachers gathered around contents with clearly defined goal. The goal is to adapt required knowledge and to gain needed knowledge and skills. The goal is common but still corresponds with all three mentioned elements in various ways. Learner and teacher approach goal from different aspects and presumably with the same motivation: the fastest and the efficient content adoption. The context in which teaching is being performed is the fifth important process element. Usage of ICT leads to new problems of teaching process. The most significant problem is ownership over the educational contents. Let us express it as a dilemma: should the educational software have an owner? The aim of this study is to point at some primarily legal but also ethical and moral aspects of teaching, especially its form that is today known as eLearning or tomorrow as mLearning.
Key words: eTeaching, eLearner, eLearning,, ICT, intellectual property, authority
Introduction
The pupil and the teacher are the basic initiators of education as a process and are therein positioned in a relationship out of which their general rights and obligations are derived from. For this reason it is quite clear that such a process must be regulated on basis of the law, i.e. the right way of obligation fulfillment must be provided and there must be protection of rights that are derived from the process or are its result/product. Lawyers-specialists deal with ownership and legal problems in educational contexts of traditional education, i.e. teachers and pupils are not competent for this group of problems. eLearning throws a different light on the problems of ownership and rights, with accentuated meaning.
The goal of this paper is to point out to some basically legal but also moral aspects of education, especially its form known today as eLearning. Positive regulations from the area of author’s rights and intellectual possession in the Republic of Croatia have been taken into account when describing and elaborating standpoints in the paper. Please note that the Republic of Croatia has brought into accordance most of the legal regulations from this domain with the corresponding ones in the European Union.
Education Contents as a Property
eLearning elements – contents prepared in electronic form are expensive in respect to their elaboration, manner of keeping and control (access, protection, forwarding, post-processing, etc.) (Duncan and Ekmekcioglu, 2003). Information on rights and intellectual ownership (IPR) are of exceptional value when designing digital form archiving, as well as creating repository with data on owners, users, conditions and access rights, manner of use. Further to the mentioned facts, the problem of intellectual ownership and author's rights is serious and with more intense ICT application in education it is of growing importance. Hence it is important for the main participants in education, the teacher and the pupil to be well informed on the basic facts of intellectual ownership and author's rights. Although (Casey,2003) in this context accentuates different forms of ownership and corresponding rights (Copyright, moral rights, performers' rights, rights linked with databases, Patents, Business secrets, Know How, logo, design), we can limit ourselves only to the concepts of intellectual ownership and author's rights. It is also stressed that eContents (he uses the concept of eLearning programs bearing in mind programs/courses) are complex and expensive assets for designing and making and as such they represent valuable basic property that should be protected and handled with care.
From the legal point of view intellectual property and copyrights are regulated by regulations and laws on state level. In the Republic of Croatia this matter is regulated by the Law on copyrights and similar rights brought in 2003, and as to international contracts, Croatia applies Bern convention clauses on protection of works of literature and art, as well as other convention stipulations in the area.
The Law stipulates what is to be considered an original author's piece of work and computer programs are expressly mentioned. In most cases electronic educational material can be included in the copyright group. However, the general rule is that ideas, procedures, methods of work or mathematical concepts are not protected by copyright and there are other exceptions stipulated by the law. The term author's piece of work applies to a product from the field of literature, science, arts and other forms of creativity having spiritual contents, regardless of the type, manner and form of expression. (Zakon…,2003). A work's author is the person who has created it. Copyrights belong to the author from the moment the author's work was created and are not conditioned with fulfilling any kind of formality. The person whose name and surname or pseudonym is marked on the work is considered as the work's author, unless proven otherwise. (Zakon…, 2003).
However, this kind of approach to eLearning requires determination in respect to eLearning from several aspects. It is necessary to determine ourselves in respect to the following:
a) eLearning as a form of education in life-long education: In a major segment of education the influence of ICT is reflected in the structure of certain education contents with change of competence in respect to certain vocations linked with education. For instance, all those using ICT technology as an auxiliary teaching means or methodical means are obligated to acquire a certain level of competence in the area.
By promoting the concept of long life learning, the teaching process has been indirectly proclaimed as an active constant, moreover, the (non)obligatory activity in certain phases. In real-life circumstances this requires legal regulating of such a process. Long life learning is a process divided into phases. However, all the phases are education, but the legal regulating of these phases and the participant rights vary to certain extent, from phase to phase. In other words, the primary education and secondary education are educational phases, but they differ one from another. The mentioned circumstances are different on each level of the educational ladder. Actually they are more sensitive in the area of education participant rights. The pedagogical and educational components in education are inversely proportioned as to representation and the pedagogical component is weaker in the higher level of education.
At the same time, also if one is advancing towards the end of education, ethical principles in this process such as approach, accuracy, privacy and ownership gain in meaning.
eLearning as a form of education will probably prevail due to several reasons, the elaboration of which is not the topic of this paper. It is important that education as a process in the sense of organization will change significantly in this case and that radical altering is necessary in education guidelines and realization means.
Therefore, it is necessary to stress that education legislation may have its basic pattern regardless of the level or education purposes, but depending on the level or goal, and because of its specific quality, requires certain supplements and attachments. Regular education beginning from kindergarten to higher education is regulated in full by the ministry departments. However, by gradual including of private sectors into the area, regulations must be adapted to new circumstances. Besides the division into government and private sectors and this is important for our considering, it is also necessary to mention the division of education as an active activity and education as a hobby. The rights of pupils are more specific for the latter group.
b) eLearning as a process with the belonging rights of its active participants: Regardless of the level and purpose, regardless of the way learning is organized, the starting elements are the pupil and the teacher. In eLearning circumstances the pupil is the one who has felt least changes as to his position. His motives are constant. Constant are the motives of the teacher as well, but the teacher has altered significantly. He has become part of a team changing his classic position. Although the positions of both entities have been legally regulated within the guidelines of obligatory education, this seems to be the subject «someone else» should worry about. The Teacher and the pupil are obligated to fulfill the tasks set before them. The legislator has also taken care of the third element, the learning contents. By prescribing and approving textbooks, i.e. teaching material, he has taken away the worry about copyrights from both the pupil and the teacher. However, designing and articulating tuition contents is classically left to the teacher who «ad hoc» creates an author's piece of work by implementing his capabilities and creativity and this is not heeded by the legislator. To be exact to the point – it is heeded by certain pedagogical control bodies. Ten years of working as a professor and the subsequent twenty years in managing corporation education gives me the right to state that education is a process, the quality of which is best controlled by the one who it is aimed at – the pupil.
eLearning is understood as prepared contents including a certain LO group. In such an environment the teacher is not capable of doing things by himself and he must share the job, and therewith the team's destiny. The other extreme is the possibility of choosing the prepared LO and forming of teaching matter according to one's wishes. This opens a completely new area as to rights and obligations for both. The possibility of offending the law obliges us to redefine relations and to stress certain standards and regulations.
c) eLearning Contents as intellectual property and/or an author's piece of work: Learning contents are always formed into a strictly determined type of sequence and named depending on the context as course, program, classes, and similar. In a certain way programmed tuition may be considered as a predecessor to eLearning. The teacher will construct the best form of tuition by using the previously prepared educational objects. Different situations are possible. The first is the extreme where the teacher himself creates all the necessary elements/educational objects, but there are also situations where he designs only some of them, or finally, he applies ready made programs. The question to be asked is the following one: Can there be ownership in respect to knowledge? As each and every form of tuition is acquiring knowledge, it is possible to admit ownership only in respect to the «packaging», perhaps not even then. Proof for this is the development of different forms of social software.
There remains an open issue whether tuition contents where the teacher incorporates his pedagogical, methodical and other capabilities are an author’s piece of work. It is evident that each of these contents may require certain verification, and this might complicate the situation. Rejection of such rights determines the teacher as a mere interpreter. Finding solutions for disputes and facts that may follow breaking of such Laws are in Croatia in the competence of the Trade Court of the Republic of Croatia. Thus eLearning has been indirectly proclaimed as a Trade.
d) eTeacher and intellectual property and copyrights in eLearning: The law determines intellectual property as «protected impalpable property». In what way are tuition and the teacher treated in respect to this context? It is indisputable that each hour of class is a “palpable” piece of property created by the teacher or team forming the eContents in eLearning. In such a case its realization will truly be palpable, because eLearning requires a precise scenario for realizing determined activities. The teacher has the role of a director or composer of the said activities and may appear as the author of one or more activities or educational objects, or even the one signing the complete eContents. In that case it is necessary to protect his copyright. Of course, the teacher also has obligations prescribed and regulated by other legal enactments. The relations are different when the teacher is in the role of interpreting or arranging contents that are not his property and there is the obligation of providing approval or compensation for the author. In such cases all regulations must be obeyed legal obligations must be fulfilled. There exists a “democratic” area in respect to the listed extremes, and that is the possibility of creating eContents with and through various forms of social software and similar freeware.
f) ePupil and intellectual property and copyrighrts in eLearning: The term life-long learning positions the individual in the role of a constant pupil. On the other hand, eLearning (especially online) depersonalizes the individual in a certain way. We would like to stress the fact that in online learning there is no need for “physical” contact between the eTeacher and the ePupil. The pupil appears as a virtual person that only subsequently may acquire some other characteristics. As the pupil appears as the prevailing consumer of tuition contents, the author is only partly competent for the eContents being used and for preventing possibilities of unauthorized consuming of additional and similar contents that fall into the field of copyrighted material. An additional problem is the situation in which it is impossible to determine the pupil’s age. It is to be expected that there will not be many such problems and situations in primary education and partly in secondary education and that they will be more prominent and frequent in higher education. We would like to put special stress on forms such as “learning in accordance with one’s own needs and learning connected with hobbies”. As learning is increasingly becoming a job, especially eJob, there is an increasing number of eForm courses, forms, and similar. The pupil population is therefore a very variable group of people in respect to any applied criteria. The constructive approach to learning is highly advocated namely by eLearning. Such circumstances put the ePupil into the position in which he may turn out as an original author or the initial advocator of carrying out an original piece of work. Such work, even the initial idea, should be protected in the adequate manner. The approach to such forms is usually regulated by some sort of contract, but such contracts should also contain clauses regulating these situations and protecting pupils’ rights.