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Out-Law News | 08 Apr 2019 | 11:18 am | 10 min. read
However, for established providers with legacy arrangements, implementing any major IT change can be challenging. It is likely to require providers to manage cultural change, could require careful engagement with student and staff bodies and may also mean having to update existing contracts and policies to address legal issues that could arise. It can also be challenging technically, particularly where data is held in various legacy systems and different formats.
There are examples of how technology is resulting in positive change within the sector. There are also important legal issues providers should be aware of in implementing these technologies.
The way that courses are delivered is changing. This change is being driven in part by the increasingly competitive higher education market and the funding pressures that brings, but another factor is growing student expectations over technology.
Many of today's students, particularly teenage undergraduates, have grown up in a world where technology is ubiquitous. It is baked into how they live, from their everyday communications to how they make payments and access entertainment services. They expect technology to be front and centre of the way they learn too. This increased expectation has implications for the way courses are delivered.
For previous generations of students, their learning would be dependent on being physically present at lectures and seminars. In many respects it would be dictated by the quality of their note-taking and diligence in carrying out follow-up reading in the library.
Those factors remain important today, but the concept of learning has evolved as technology has developed. Students now expect to have 24/7 access to learning resources digitally, to have access to lecture capture technology, and be able to use devices in lecture and seminar rooms.
Alongside this, there has been growth in online and virtual learning. Virtual learning environments are becoming increasingly sophisticated and are enabling providers to deliver courses remotely to a new body of students who through location, disability, cost pressures or other factors cannot or do not wish to be taught on campus. This offers providers the chance to increase their reach, potential revenue and attract a more diverse student body.
Against this backdrop of change, providers face greater scrutiny than ever before over the way they deliver courses. The expectations and demands of students, and their parents, have grown as tuition fees for the majority of students studying in the UK that pay fees have increased. In addition, we have seen new standards developed in England to measure the quality of teaching, learning and outcomes delivered by higher education providers.
Providers in England are now assessed for the excellence of their undergraduate teaching against the Teaching Excellence and Student Outcomes Framework (TEF), and the Office for Students (OfS) in England has regulatory levers it can pull if the desired outcomes are not being achieved.
If providers wish to enjoy the benefits of registration with the OfS, including access to grant funding, the ability to recruit international students under the Tier 4 visa regime, access to the student support system for student loans, and the ability to award their own degrees, then they must register with the OfS. Where they do so, this opens them up to assessment against the TEF. Providers in Scotland, Wales and Northern Ireland also have the option to participate in the TEF and obtain a ranking.
Those providers that participate are awarded a 'gold', 'silver' or 'bronze' ranking based on assessments made by an independent panel of experts including academics, students and employer representatives, with the ratings published online where they can be seen by prospective students.
Under the TEF providers are specifically assessed for graduate employability. The standards are designed to ensure students that go through higher education acquire knowledge, skills and attributes valued by employers. Central to meeting the 'employability' standards is the need for providers to ensure their students are engaged. This is where technology can play an important role.
For example, lecture capture solutions – which enable providers to record lectures or seminars that their academics deliver on-campus and then archive the recordings for students to access after-the-event – enable students to revisit topics addressed in their classes in their own time and can help them gain a better understanding of the issues.
Even back in 1931, the American educator Hamilton Holt referred to academic lectures as "that mysterious process by means of which the content of a professor's notebook are transferred by means of fountain pen to the pages of the student's notebook without passing through the mind of either".
Today, lecture capture solutions remove the reliance on proficient note-taking and open up the opportunity for students to digest points of learning at their own speed. It also offers scope to widen participation to a body of students who may have previously felt hindered due to concerns over the pace at which they learn. This technology can also be used to effect positive change in teaching and learning methods, an example being the 'flipped classroom', which enable lecturers to focus on key learning points during valuable contact time. By adopting this technology, providers can increase student engagement and depart from a more traditional 'one-size-fits-all' approach to teaching and learning.
'Learning analytics' can also help providers improve student engagement. Those solutions offer providers the chance to identify and provide additional support to students that are at potential risk of dropping out of courses or failing to progress through their course, and can even be used as a tool to develop or restructure the way courses are delivered, and what content is included, for the benefit of students, on the basis of the insights gleaned from data.
Introducing new technology, whether lecture capture, online or virtual learning or learning analytic solutions, requires providers to navigate a number of legal issues.
Data protection law compliance must be a central consideration. With lecture capture solutions, filming lectures and archiving the recordings entails the processing of personal data, both of the academics delivering the lecturers and of students who are identifiable.
Providers will need to ensure that any processing of personal data is done fairly and in line with the data protection principles and requirements set out in the General Data Protection Regulation (GDPR) and Data Protection Act 2018. Transparency obligations under the GDPR require providers to clearly notify students that they may be filmed/recorded, the purpose of the recording and how and to whom their personal data would subsequently be made available, such as through student portals. This could be achieved through a verbal notification before the recording takes place or through notices placed within the lecture halls. Providers may consider setting up a recording-free area for those who wish to opt-out.
In the context of using learning analytics, providers should be transparent with students about their use of this technology. For example, students should be provided with information about the data being collected, the analytical metrics being used, the purpose of the analytics and how the results will be used. This will help providers comply with their legal obligations and also assist with explaining the purpose and benefits of learning analytics technology to students.
As well as external transparency, providers should also carry out internal assessments of how the learning analytics will work and identify any risks that the processing could present and any internal procedures that need to be put in place. Providers will also need to ensure that the collection and processing of personal data is justified under one of the lawful bases for processing provided by the GDPR, which should be considered on a case by case basis.
There will also be situations where the provider may need to obtain consent from students. For example, if the provider plans to collect 'special category' data – personal information considered to be particularly sensitive in law – or when certain actions are going to be taken based on the results of the analytics. Providers should also consider the possibility that the use of learning analytics may amount to 'profiling' and/or result in automated decision-making processes. If so, these types of activities can only be carried out in specific circumstances and additional safeguards must be put in place. If consent is required due to the nature of the learning analytics being carried out, providers should bear in mind the high standard for consent under the GDPR.
All these technologies are often cloud-based technologies that involve the processing of personal data. Whenever a provider is appointing a third party to process personal data on its behalf, it should carry out sufficient due diligence to ensure providers can meet their GDPR obligations and a written contract must be put in place that includes the GDPR requirements. Providers should also check arrangements around where personal data is being processed and whether there will be any overseas transfer of personal data before contracting with providers of the technologies.
Providers also need to ensure they have appropriate licensing arrangements in place to enable students to access student-facing systems, such as virtual learning environments, in the required manner. Restrictions on where systems can be accessed could have a practical impact for current or future plans, so any such restrictions need to be considered carefully. Having clarity over maintenance and downtime arrangements will also be important for continuity of access.
If access to student-facing systems is unwieldy, patchy or slow, this will negatively impact the provider's reputation and the student's experience. Providers also need to consider the accessibility of such systems and compliance for students.
Providers should also satisfy themselves that they retain control over how data input into systems is accessed and used and ensure that they can extract data in a suitable format via appropriate technical means upon cessation of the agreement with the supplier.
Intellectual property rights need to be considered in respect of any bespoke systems and their content but also in the context of lecture capture solutions.
Where materials are produced by a lecturer as part of his or her employment with the provider, copyright is generally owned by the provider and permission is not needed to include such materials in a lecture recording.
Lecturers may also use third party content within their lectures, such as extracts from books, articles, photographs and/or recordings, which are normally protected by copyright. In the context of learning analytics solutions, making recordings of lectures available to the student population online could potentially expose academics to a greater risk of third party copyright infringement claims if the copyright position regarding such content has not been properly considered.
Some academics have previously raised concerns and requested assurance or legal protection from providers regarding that risk on condition of agreeing to their lectures being recorded. Providers should explore issuing guidance to their own academics to ensure materials they use in lectures are properly licensed, out of copyright or fall within a 'fair dealing' exemption under the Copyright Designs and Patents Act.
Recording lectures may also give rise to issues around performance rights. Performers have rights in their performance and any recording, film or broadcast of that performance. The performer – in this case the academic delivering the lecture – will be the owner of the performance rights, not the provider as his or her employer.
Lectures are not expressly listed within the definition of a 'performance'. However, taking a risk-based approach, many providers consider performance rights should be appropriately dealt with before embarking on a lecture capture initiative. Providers will need either an assignment or licence from the lecturer to record and use the recordings in future.
In addition, under UK copyright laws an author of copyrighted works enjoys moral rights in those works once they have sold the works on. Moral rights include an authors' right to be identified as the author of works and not have others' work falsely attributed to them, as well as the right to object to their work being subjected to derogatory treatment. The right to object to derogatory treatment and the right to be identified will not apply where academics have created the copyrighted works as part of their employment with the provider, as the copyright is owned by the provider. However, these moral rights do still apply to an employee's performance so will be relevant to lectures.
When implementing lecture capture technologies, providers will need to be cognisant of moral rights that subsist in certain copyrighted works and performances. It would be preferable for providers to obtain a written waiver of moral and performance rights prior to recordings being carried out.
In practice, the issues relating to copyright, performance rights and moral rights are often addressed through employment contracts, intellectual property policies or specific lecture recording policies.
Imposing new technology without prior consultation is not a tactic likely to endear providers to either students or staff. Indeed, gaining buy-in from those who will be impacted by new technology is vital to the success of technology projects.
Providers need to be sensitive to the rights and concerns of students and staff, particularly around privacy and seek early engagement with them on plans to introduce new technologies. We know that people can be resistant to technological change so transparency and clarity is vital to allay concerns. Providers should also be prepared to engage with student and staff bodies to address any concerns that arise.
The messaging is important. It is vital that providers clearly convey the positive impact introducing the technology will have for students, staff, departments and the provider as a whole. By doing this upfront, providers will have taken positive steps in preventing resistance to the change at a later date and they can instead focus on reaping the benefits the technology can provide.
Joanne McIntosh, Lisa Harley, Rebecca McCall and Nicky Pereira are experts in edtech at Pinsent Masons, the law firm behind Out-Law.com. To read more about edtech and download our whitepaper click here.
Out-Law Legal Update
Individuals advised to check whether they can still claim entrepreneurs' relief