Legalities, Issues and Ethics related to eLearning: Be Informed
by PURAMARYVER F. SAQUING
First of all, I would like to welcome you all to our T3! I would like to introduce myself to you. I am Puramaryver Saquing, a lawyer and educator. My topic is about legalities, issues and ethics to eLearning.
Our new normal is something that every one of us did not plan, neither anticipate. Even historians did not expect this to happen in our time, because as history has proven, all revolutions that happened in the past were a product of years of deliberation. But emergencies fast-forward historical processes, and our many new normals today were expedited in a matter of hours, not years neither centuries.
Since we are in the period or era of an emergency, we need to catch up with the new normal in learning whether we like it or not because the risk of not living with the new normal is just too high and too big. We can no longer ignore eLearning. If it took years or even decades for schools to implement eLearning, with this current health emergency, the stakeholders – schools, students, and teachers who used to disagree with its massive implementation, have by all means, accepted it as a matter of policy. Do we have a choice? Of course, we do. But the choice to refuse it will make us a permanent fixture of the past.
When we talk about issues, we never run short of these, and I do not hope to cover the details of all issues, but there are some things that need emphasizing for us eTeachers, and which issues should also be communicated or echoed to our eLearners.
On the legal side, I will focus on the Philippine legal framework. On the ethical side, since concepts in this domain are universals, we will look into some time-honoured principles which we are all familiar with though sometimes are forgotten, taken for granted, or worse, intentionally violated.
Let me start with these reminders:
- It is the moral duty of eSchools and eTeachers to provide degree programs that have inherent educational value.
- That ethical issues are sometimes legal issues too, and vice-versa. But this is not to say that whatever is legal is ethical as the old-principle admonishes us. Between issues that are legal and issues that are ethical, the former has more clarity than the latter? Why so? Legal issues can be resolved by what the law says; while ethical issues are not. There are so many ethical issues that cannot be resolved by the law. Example, sometimes it is not easy to define what honesty, transparency, or integrity is. In eLeaning, what is our definition of honesty? Does it exclude assistance from someone when answering online quizzes? This is where our moral choices will come in. This is where reasoning comes into the picture.
- The legal and ethical issues in eLearning platforms are similar traditional or face-to-face education, or traditional teacher-learner relationship. The difference only is the mode of discovery of some ethical issues or certain violations. For example, cheating during examinations in traditional classroom setting would be easily detected unlike in eLearning where the mechanisms for detection have not been properly laid out. We are all familiar with the term social/physical distancing in this health crisis. But experts have, more than ten years ago, coined the term psychological distance referring to why academic dishonesty among eLearners is prevalent. So the ethical issue is, are we allowing dishonesty knowing that academic dishonesty is rampant?
- eLearning is not just about legal and ethical issues, there are other issues involved – cultural, economic (internet infrastructure), personal and security.
Common legal issues for both eLearners and eTeachers:
eLearning is not without inconveniences. While it defies brick and wall limitations, there are some legal and ethical limitations attached to it.
As professors, we may be using content, visuals, methods, and materials that we use in a face to face education. But, our previous legal protection in a traditional face to face teaching may no longer be available in eLearning since what we post in our new platform may reach the ends of the earth – the authors and owners of what we use online. Since visuals are an important aspect of eLearning, we will contend with copyright issues, or more generally known as intellectually property right. On this aspect, we have the Intellectual Property Code (R.A. 8293) to guide us.
Intellectual properties, also known as creative properties, are similar to material properties in the sense that there is an owner and a user. Because of that, there is also a law governing these kinds of properties.
When we speak of intellectual property rights, there are three stakeholders – the owner, the user, and the public. But the intention of the law is for the protection of the owner of the property. In cases of violations, the one punished by the law is the user, and the public who eventually becomes the user too. As professors or authors, our concern is more on copyright law. Violation of this law is called copyright infringement. In our online lectures or submissions, we may be using visuals that are protected by the copyright law. The owner has all the right to his work. Permission must be granted before using the copyright work. You might ask, is it enough to acknowledge the owner when using its work? Strictly speaking, No. There is a difference between acknowledging the author/owner and obtaining permission. But there is an exception to this. It is called fair use.
Are there instances when we can use creations or authorship of others without obtaining permission from the author and which will not result in copyright infringement? Yes. This is called fair use.
FAIR USE WHEN?
• For criticism
• For comment
• For news
• For reporting
• For teaching, including multiple copies for classroom use
• Scholarship research and similar purposes.
So as not to expose our students to legal risks, we need to ask these questions as eTeachers:
1. Do our students have sufficient knowledge of what copyright law is about?
1.1 Does the course have the permission for students to post anything on the web?
1.2 How do we design a course that educates our learners about copyright or intellectual rights law for us to help them avoid legal risks?
1.3 How are we going to design a course that tells students that before they can post somebody else’s picture or project or anything to form part of their assignment must have permission from the author?
At this point I would like to differentiate copyright, patents, and trademark which sometimes we mistake one for the other.
Copyright refers original intellectual creations in the literary and artistic domain, such as paintings, writing, architecture, movies, software, photos, dance and music.
Optical Media Act of 2003 for audio visual copyright.
Patents refer to technological solutions of a problem in any field of human activity which is new. Examples are new and useful machines (inventions eg robots invented to avoid physical proximity of attending doctors to covid patients), products (soaps, food) and processes (eg manufacturing technique or recipe).
Trademarks refer to tools to differentiate goods and services from one another. Examples are names of a product, logo of business, the Jollibee icon, Nike insignia, TUA logo.
As to writing and scholarship works, we have here a scenario as professors:
In the case of a work created by an author during and in the course of his employment, the copyright shall belong to: (R.A. 8293, Section 178 (3))
- The employee, if the creation of the object of copyright is not a part of his regular duties, even if the employee uses the time, facilities, and materials of the employer.
- The employer, if the work is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary.
– Module creation issue. Is it a part of our regularly assigned duties? The answer is no. Why? Because, it is not part of our regularly-assigned duty which is teaching. If there is somebody, or an office or department at TUA that does the module-making for any or certain course, and that is its regular duty, then the copyright owner is TUA, not that person.
Q: Aside from this, there is another scenario as professors to our online students. How is their written work submitted to us being treated? Can we appropriate them as ours? Are they the authors?
A: Professors may not claim ownership to the students’ creation even if submitted to the custody of the professors. This has to be emphasized because there are cases of professors who appropriate the theses of their students and claim them as theirs.
Note: Copyright is protected from the moment of their creation not from the moment of their registration.
What is the difference between copyright ownership and ownership of the copyrighted material? (Section 178 (4) of RA 8293)
Copyright ownership is separate from owning the physical object/work. Just because you physically own an item does not mean you will own the copyright in the item. An author or creator may sell you their work but they will retain the ownership of the copyright. The creator will still have to reproduce, publish or communicate the work, as well as grant those rights to other people over the property that you own.
Q: What about the issue of plagiarism?
A: It is also copyright infringement issue. To avoid plagiarism issues, and if the matter is under fair use, it is enough that you recognize the author. It becomes copyright infringement when you appropriate the content as your own by not recognizing the author. And if the copyright infringement is done online, it becomes a violation of cybercrime law, the penalty of which is higher than the ordinary copyright violation (Sec 6 of Cybercrime Act says all crimes defined and penalized under special laws and RPC).
Ethical issues for eLearners:
- Inappropriate assistance on examinations
- Copyright infringement
- Not following academic regulations of the school
Ethical issues of eTeachers/eLearning provider
Quality of learning process
- Quantity or convenience over quality. It is enticing to give objective type of exams, e.g. multiple-choice type because it can be checked right away. This is the temptation of convenience over genuine learning process.
- Discipline implementation for academic fraud or lack of academic honesty. If an eTeacher opts for a non-objective type of exams, e.g. reflections and essays, punishment for academic fraud, copyright infringements and non-following of academic regulations may be difficult to impose during this stage if there is absence of codified academic regulations or sometimes known as honour code.
- Quantity of students over quality. It is going to be a dilemma between encouraging as many students as possible to enrol and implement pro forma mass promotion over quality of degree holders.
In general, we should ask ourselves this question:
1. Does the course provide any guidelines for learners to behave online?
2. Does the course have Honour Code to regulate or deter academic dishonesty?
Cultural issues – some of our students come from other countries, and some from provinces. So we should ask ourselves questions like:
- How should I design a course content that avoids using jokes, examples, or jargons that are not commonly understood due to cultural diversity?
- How do we design a course material that does not offend the sensibility of other people with different cultural background from me?
Economic (Connectivity issue) – not all of our students have the same strength of internet connection, especially nowadays, we experience this weak wifi connection due to the volume of users. According to reports, Ph is lagging behind in terms of many goods, one is internet. So let us ask ourselves these questions:
- As eTeachers, how are we going to determine if our students have good internet connection? Are our students’ connectivity classified as full, low or no access? Why is this important to ask? Because of deadlines for submission. Are we going to impose deadlines or not?
- With a lot of connectivity issues, what course content are we going to design that cuts through this digital divide among eLearners? There are materials that cannot be downloaded through data only.
eLearner issues – let us not forget that each student is different. In traditional classroom learning, we have physical interaction and we observe each student directly giving us knowledge of their individual differences. This is not so in eLearning. So we ask ourselves these questions:
- How do we design a course content that will cater to the learning abilities of each student? This is a tough work. This becomes and ethical question too since we are confronted with this dilemma. Should I design a course material that is easy to take up even if it bores students who are highly intelligent or should I design a course content that is difficult even of it leaves the others behind.
Personal bias – as human beings, it is impossible to be totally detached from any predilections, prejudices and biases. So we ask ourselves
- Are we going to suspend our biases on certain issue that may form part of our course content?
- Is it imperative that, despite our biases, we should be able to present all viewpoints on a certain issue instead of just our point of view?
Cyber issues – the internet permeates through every aspect of corporate, personal and government lives. Of course schools are not insulated. Do we have strengthened cyber defences as part of our cybersecurity?
Even if we did not violate the data privacy rights of our students, others will attack our systems, and even our learning processes. And that is very risky on our part.
For example just recently, the student portal of San Beda University, according to news, was hacked. What type of cyberdefense do we have in place to protect the submissions of our students, not just their data? Do we have an audit log?
The pandemic has brought us to both examine our weaknesses and strengths as a learning institution for which we cannot avoid to subject our school to an autopsy.
But this moment is an opportunity to envision the education universe and to prioritize a culture of teaching, learning and knowing that is equitable, collaborative, ethical and accessible. (Alondra Nelson)
PURAMARYVER F. SAQUING is a media lawyer and an Assistant Professor at the Media and Communication Dpeartment of Trinity University of Asia. She is teaching Media Laws, Media Ethics, Knowledge Management, and Ethics.