Being An e-Learning Developer Doesn’t Excuse You From Being Careful

There is a great temptation, especially in these tough economic times,for e-Learning developers and providers to:

• Find new ways to earn extra money, for instanceby converting purely educational programs into paid courseware,
• Save money by creating new images from bundledclip art or photographs, for example by creating silhouettes or combiningimages from the bundled artwork, or
• Enliven courseware by adding edgy commentary,embedding someone else’s video, or adding music or video mash-ups.

The problem is that by doing this developers may inadvertently riskputting their companies or themselves at risk of legal action, because the sametough economic conditions that give e-Learning developers incentive to findcreative ways to earn money are also giving those who have what they considervaluable intellectual property (IP) assets and reputations even greaterincentive to protect these assets.

License constraints

There are many software tools that enable developers to createoutstanding courseware.

Though it is tempting to use the artwork (graphics,photographs, clip art), videos, or sounds bundled with the software in commercialcourseware, or enliven courseware by combining bundled artwork, video, andsounds to create new art and  thenembedding these in courseware, developers should read the fine print in theirsoftware license agreements before doing so. 

The licenses of many software programs include contractual restrictionsthat may specify how the programs and bundled graphics, photographs, video,sound, or multimedia files can be used, what users can or cannot do, or both.Typically licenses allow developers to use bundled artwork for purelyeducational but not commercial purposes.

Yet, even in the absence of license restrictions,there are potential IP issues and other potential legal pitfalls developersmust pay attention to, particularly if they create new art by combining sounds,images, or videos found on the Internet or bundled in software programs.

What is IP?

IP describes a range of rights in different aspects of a business and itsproducts. (As an example, consider thedefinitions of the Intellectual Property Department of The Government of theHong Kong Special Administrative Region, online at https://www.ipd.gov.hk/eng/home.htm.) The most common IP rights are trademarks, copyrights, and patents. There arealso design rights, plant variety protections, geographic indications, andsui generisprotections, but that’s way beyond this article.

Trademark

         A trademark is a sign that distinguishes the goods andservices of one trader from those of others. (Again, see https://www.ipd.gov.hk/eng/home.htm.) When a company registers its trademark, this means that it has the exclusiveright to use the trademark in relation to the goods and services for which themark is registered in the jurisdiction that it is registered in.  If other traders use the trademark relationto the same or similar goods or services without the trademark owner’s consent,they may be liable for infringement of the mark and the trademark owner maytake legal action.

When developers use or abuse the trademark they ortheir companies do not own, they risk legal action by the trademark owner.While misuse of the logos of, say, Coca-Cola, Apple, or IBM are obvioustrademark violations, developers may not realize that the legal scope of whatconstitutes a “trademark” may go beyond words, two dimensional designs,numerals, or figurative elements. Sounds, three-dimensional shapes, and evensmells can be trademarked in some jurisdictions. A developer may also besurprised at the breadth of the coverage of some trademarks registrations.  In other words, just because someone’strademark is usually used for one thing doesn’t mean the trademark registrationdoesn’t cover something else.

To be safe, a developer should not misuse trademarksor sounds, particularly well-known ones, lest he or she find him or herself onthe wrong end of the law. 

Copyright

There is also copyright, which is the right given tothe owner of an original literary work such as books and computer software,musical works, dramatic works such as plays, artistic works such as drawings,paintings, and sculptures, sound recordings, films, broadcasts, thetypographical arrangement of published editions of literary, dramatic, ormusical works.

Using a copyrighted work without the permission ofthe copyright owner can land a developer and his/her employer in trouble, and,as with trademarks, the scope of copyright protection may go beyond whate-Learning developers expect. Copyright rights also cover performers’performances. Copyright works made available on the Internet environment arealso protected, and copyright does not require the work to have an aestheticvalue nor to be clever nor very creative. Even a simple photograph taken by anordinary person would be copyright protected, and, unlike a trademark,copyright rights come about automatically.

Copyright owners have, in the past taken actionagainst people or organizations they feel have abused their copyrights bycombining or embedding works or making it easier for others to post works. Forexample Universal Music Group sued social networking site MySpace.com forcopyright infringement because MySpace were posting Universal-owned clips. (Seethe References at the end of this article.) J.K. Rowling sued RDR books and wonan injunction against the publication of the Harry Potter Lexicon, the judge inthe case noting that the “Lexicon appropriates too much of Rowling’s creativework for its purposes as a reference guide.” (Again, see the References.)

Happily, e-Learning developers have some rights of their own. Not onlydoes e-Learning courseware itself enjoy copyright rights, but many copyrightlaws offer exemptions, for instance for educational purposes, for the use ofothers’ copyright works under either fair use or more restrictive fair dealingprovisions.

E-Learning developers can also avoid potential legal complications bypurchasing their own clip-art, images, etc. under a commercial license, or useimages, audio, video, or other art works under a Creative Commons license(though developers must pay attention to the different licensing optionsavailable under a Creative Commons license.)

Patents

Somewhat more unlikely, but I include patent lawnevertheless for completeness.

Patents protect inventions for a period of time,typically 20 years. To get a patent, an applicant may need to have his or herinvention examined by a patent office and demonstrate that the invention isuseful, inventive (the U.S. patent term is “non-obvious”), and does not existin the state of the technical art – what patent lawyers would refer to as“newness” or “novelty.”

Definitions of novelty vary among jurisdictions, but premature disclosureof a new invention in a published e-Learning program, an online training video,or comments associated with the course could compromise the patentability ofthe invention.

Portraits

Pictures of people, particularly celebrities, arepotentially problematic as well. Unauthorized use of personal pictures maypotentially contravene local privacy laws, but there are also portrait laws insome jurisdictions, for example Mainland China, that allow a person the rightto protect his/her visage. Such laws have been enforced in the past – in 2003 basketballstar Yao Ming successfully suedCoca-Cola for portrait infringement when his picture was displayed oncommemorative cans, along with those of two other Chinese BasketballAssociation players. (See the References.)

Defamation

Finally, developers and e-Learning managers must becareful not to include defamatory materials or commentary in their e-Learningcontent. Defamatory comments can be written (libel) or verbal (slander), andcan find their way into courseware as part of the course content, comments bypresenters, or in online comments that may be found, for example, in discussionboards. 

Defamation is particularly tricky in the onlineenvironment because e-Learning courseware may be accessed internationally, andtherefore may potentially be subject to defamation laws in multiplejurisdictions. Complicating matters are differences in defamation lawsworldwide that which means that a defamed person could potentially sue ane-Learning publisher anywhere as the seminal case of Gutnick v Dow Jones illustrates ([2001] VSC305, online at https://www.austlii.edu.au/au/cases/vic/VSC/2001/305.html).

Gutnick, a leading businessman in Australia, tookoffense to an article in the online version of Barrons magazine and sued the publisher, Dow Jones, fordefamation. Rather than sue in America, where Dow Jones’s editorial staff waslocated, Gutnick sued in Australia, where the local laws favored him (and hewon).

Conclusions

In short, given the current economic climate it is tempting fore-Learning developers to cut corners. But the same conditions are also giving others greater incentive both toprotect and earn revenues from their IP, and/or to protect their reputations.

Therefore developers would do well to be vigilant to potential legalpitfalls; after all, an ounce of prevention is worth a ton of litigation.

Note

The above does notconstitute legal advice. Developers and their employers should consult withqualified counsel with regards to their legal rights and obligations.

Additional information on Portrait laws inChina can be found at https://ipdragon.blogspot.com/.

References

Davis, Wendy. “UniversalMusic Sues MySpace” Online Media Daily November 20, 2006.

“J.K. Rowling WinsCopyright Claim” Sky News,September 9, 2008.

“NBA star Yao Ming winsimage infringement case” People’sDaily Online, Oct. 18 2003.