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 instance by converting purely educational programs into paid courseware,
- Save money by creating new images from bundled clip art or photographs, for example by creating silhouettes or combining images 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 risk putting their companies or themselves at risk of legal action, because the same tough economic conditions that give e-Learning developers incentive to find creative ways to earn money are also giving those who have what they consider valuable intellectual property (IP) assets and reputations even greater incentive to protect these assets.
License constraints
There are many software tools that enable developers to create outstanding courseware.
Though it is tempting to use the artwork (graphics, photographs, clip art), videos, or sounds bundled with the software in commercial courseware, or enliven courseware by combining bundled artwork, video, and sounds to create new art and then embedding these in courseware, developers should read the fine print in their software license agreements before doing so.
The licenses of many software programs include contractual restrictions that 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 purely educational but not commercial purposes.
Yet, even in the absence of license restrictions, there are potential IP issues and other potential legal pitfalls developers must 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 its products. (As an example, consider the definitions of the Intellectual Property Department of The Government of the Hong Kong Special Administrative Region, online at http://www.ipd.gov.hk/eng/home.htm .) The most common IP rights are trademarks, copyrights, and patents. There are also design rights, plant variety protections, geographic indications, and sui generis protections, but that’s way beyond this article.
Trademark
A trademark is a sign that distinguishes the goods and services of one trader from those of others. (Again, see http://www.ipd.gov.hk/eng/home.htm .) When a company registers its trademark, this means that it has the exclusive right to use the trademark in relation to the goods and services for which the mark is registered in the jurisdiction that it is registered in. If other traders use the trademark relation to 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 may take legal action.
When developers use or abuse the trademark they or their 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 obvious trademark violations, developers may not realize that the legal scope of what constitutes a “trademark” may go beyond words, two dimensional designs, numerals, or figurative elements. Sounds, three-dimensional shapes, and even smells can be trademarked in some jurisdictions. A developer may also be surprised at the breadth of the coverage of some trademarks registrations. In other words, just because someone’s trademark is usually used for one thing doesn’t mean the trademark registration doesn’t cover something else.
To be safe, a developer should not misuse trademarks or sounds, particularly well-known ones, lest he or she find him or herself on the wrong end of the law.
Copyright
There is also copyright, which is the right given to the 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, the typographical arrangement of published editions of literary, dramatic, or musical works.
Using a copyrighted work without the permission of the copyright owner can land a developer and his/her employer in trouble, and, as with trademarks, the scope of copyright protection may go beyond what e-Learning developers expect. Copyright rights also cover performers' performances. Copyright works made available on the Internet environment are also protected, and copyright does not require the work to have an aesthetic value nor to be clever nor very creative. Even a simple photograph taken by an ordinary person would be copyright protected, and, unlike a trademark, copyright rights come about automatically.
Copyright owners have, in the past taken action against people or organizations they feel have abused their copyrights by combining or embedding works or making it easier for others to post works. For example Universal Music Group sued social networking site MySpace.com for copyright infringement because MySpace were posting Universal-owned clips. (See the References at the end of this article.) J.K. Rowling sued RDR books and won an injunction against the publication of the Harry Potter Lexicon, the judge in the case noting that the “Lexicon appropriates too much of Rowling's creative work for its purposes as a reference guide.” (Again, see the References.)
Happily, e-Learning developers have some rights of their own. Not only does e-Learning courseware itself enjoy copyright rights, but many copyright laws offer exemptions, for instance for educational purposes, for the use of others’ copyright works under either fair use or more restrictive fair dealing provisions.
E-Learning developers can also avoid potential legal complications by purchasing their own clip-art, images, etc. under a commercial license, or use images, audio, video, or other art works under a Creative Commons license (though developers must pay attention to the different licensing options available under a Creative Commons license.)
Patents
Somewhat more unlikely, but I include patent law nevertheless 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 her invention examined by a patent office and demonstrate that the invention is useful, inventive (the U.S. patent term is “non-obvious”), and does not exist in the state of the technical art – what patent lawyers would refer to as “newness” or “novelty.”
Definitions of novelty vary among jurisdictions, but premature disclosure of a new invention in a published e-Learning program, an online training video, or comments associated with the course could compromise the patentability of the invention.
Portraits
Pictures of people, particularly celebrities, are potentially problematic as well. Unauthorized use of personal pictures may potentially contravene local privacy laws, but there are also portrait laws in some jurisdictions, for example Mainland China, that allow a person the right to protect his/her visage. Such laws have been enforced in the past – in 2003 basketball star Yao Ming successfully sued Coca-Cola for portrait infringement when his picture was displayed on commemorative cans, along with those of two other Chinese Basketball Association players. (See the References.)
Defamation
Finally, developers and e-Learning managers must be careful not to include defamatory materials or commentary in their e-Learning content. Defamatory comments can be written (libel) or verbal (slander), and can find their way into courseware as part of the course content, comments by presenters, or in online comments that may be found, for example, in discussion boards.
Defamation is particularly tricky in the online environment because e-Learning courseware may be accessed internationally, and therefore may potentially be subject to defamation laws in multiple jurisdictions. Complicating matters are differences in defamation laws worldwide that which means that a defamed person could potentially sue an e-Learning publisher anywhere as the seminal case of Gutnick v Dow Jones illustrates ([2001] VSC 305, online at http://www.austlii.edu.au/au/cases/vic/VSC/2001/305.html ).
Gutnick, a leading businessman in Australia, took offense to an article in the online version of Barrons magazine and sued the publisher, Dow Jones, for defamation. Rather than sue in America, where Dow Jones’s editorial staff was located, Gutnick sued in Australia, where the local laws favored him (and he won).
Conclusions
In short, given the current economic climate it is tempting for e-Learning developers to cut corners. But the same conditions are also giving others greater incentive both to protect and earn revenues from their IP, and/or to protect their reputations.
Therefore developers would do well to be vigilant to potential legal pitfalls; after all, an ounce of prevention is worth a ton of litigation.
Note
The above does not constitute legal advice. Developers and their employers should consult with qualified counsel with regards to their legal rights and obligations.
Additional information on Portrait laws in China can be found at http://ipdragon.blogspot.com/ .
References
Davis, Wendy. “Universal Music Sues MySpace” Online Media Daily November 20, 2006.
“J.K. Rowling Wins Copyright Claim” Sky News, September 9, 2008.
“NBA star Yao Ming wins image infringement case” People’s Daily Online, Oct. 18 2003.