Despite the doldrums of .com stocks, e-learning is forecast to grow substantially, both in the corporate training and the academic sectors, whether used alone or as a complement to traditional methods. Educators attracted to the potential of e-learning need to consider many issues – the intended learning experience, learning methods, content, and business plan, to name but a few. As part of the set-up process, it is vitally important to consider the legal issues involved.
Fundamental to the success of any e-learning experience are the performance, reliability, security and user-friendliness of the software. When purchasing or commissioning e-learning software, it is important that the e-teacher knows what the software will achieve. The software’s features are often set out in a detailed specification. Where software is newly commissioned, it is prudent to agree testing and remedial procedures with the developer.
Innovation will be key to competitive advantage in the e-learning market. Flexibility should be built-in to cater for changes in technology and learner demands. For example, as more learners acquire broadband Internet access, so the sophistication of the e-learning experience can be increased. It is important to have assurances that the software can be developed to be ‘future-proof’ and can be interoperable with other systems.
The terms, especially royalties, on which software is licensed to the e-learning business need to be set out clearly. If the business is being built around a particular software product, the licence to use that software should preferably be irrevocable. At the very least, the e-learning provider needs to be sure that the software licensor cannot terminate the provider’s right to use the software for anything less than a very good reason.
Support and maintenance arrangements are, as ever, critical. E-learners may need support – with e-learning often undertaken at night or weekends, in different time zones, the level and availability of support resources could be important to the success of an e-learning venture.
Agreements with third parties for hosting an e-learning service should contain detailed service levels, setting out server capacity, server connections, availability, back-up, disaster recovery and any scheduled downtime for maintenance. If learners are more likely to access courses at weekends or immediately before the deadline for submission of coursework, the hosting service needs to cope with surges in demand. As an e-learning venture grows, and as the content becomes more complicated with sound and video files, so the hosting arrangement needs to grow.
Where third-party material is to be used in course content, it is important to check that its use is legitimate: just because a photo is placed on the Internet does not mean that it is permissible to use it for any purpose. Read the fine print of any database, syndication and contributor licences. Note that exemptions in copyright legislation for the use of material for education purposes are unlikely to apply to a commercial e-learning provider and may not apply even to use for internal courses.
Learners may well need support in using the service – a helpdesk may be required. If a third party is to provide this, service levels should be set out in the contract, for example when the helpdesk will be open, staff numbers and capability, and response times. Agreed scripts and FAQs may be a useful way of mapping support procedures.
Agreements with customers should set out exactly what courses will be provided. Sign-off for each individual course by the customer will make complaints over course content or design less likely. The IT configuration which the customer needs to make proper use of the course should be specified; for example, if the course cannot be accessed through a firewall or needs a fast Internet connection.
Learners are increasingly aware of their rights under data protection and privacy laws. It is good practice to provide all end users with a statement setting out terms of use for the e-learning service and explaining how personal data will be used. Automated procedures (for example, automatic ranking of learners by results) should be explained in the statement. If there are chat rooms, acceptable use terms should be set out. It is also a good idea to try to limit liability to disgruntled end users in the terms of use. Just as a disappointed pupil has recently started litigation action against a school for loss of earnings due to allegedly negligent teaching, so e-learners might bring claims for missed promotion if an e-learning management course disappoints them. Each learner should, at the initial log-in, be required to scroll down the statement and specifically agree to its terms by clicking an acceptance button before being permitted to access the service.
Before marketing e-learning, consider relevant marketing laws and codes of practice. For instance, some countries regulate the use of the terms ‘university’, ‘institute’ and ‘teacher’. Deleting offending terms from marketing and learning materials is not a rewarding task. In choosing a name for an e-learning service, care should be taken that the name is not covered by a third-party trade mark or could be confused with a competitor. Ane-learning provider may wish to register its brand as a trade mark.
E-learning providers sometimes team up with universities, both for pedagogical input and for the prestige of using the university’s name. For a university, its name is a valuable brand and how it is used should be carefully controlled under a licence agreement.
Tax can be a headache, particularly on cross-border supplies. It may be appropriate to establish a separate limited liability company (perhaps offshore) for a new e-learning business, to limit potential liabilities generally.
The combination of issues raised by e-learning is broad. The prospective e-learning provider is well advised to seek at an early stage legal and tax advice in each country where it intends to operate – some problems and headaches at a later stage may be avoided. As well as setting parameters for the customer’s and provider’s obligations, this process can give each party an opportunity to think about its needs and capabilities, so that their e-learning relationship can be a more rewarding experience.
James Humphrey-Evans is an associate at international law firm Allen & Overy (www.allenovery.com).
