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Intellectual Property Rights In eLearning

eLearning professionals are increasingly creating educational materials that are offered on a wide scale, globally. With this dynamic frontier of content delivery, emerge questions and concerns about intellectual property rights among content developers and providers. Questions such as who owns the digital materials and content that I create and post online? What are institutional or organizational limits of ownership to my e-materials and digital products?, Can I patent my work and what are organizational implications? Do I have the right to use content for eLearning courses that is easily downloadable and found on the worldwide web at another organization? This article addresses intellectual property rights related to the field of eLearning and discusses its implications for eLearning practitioners.
Intellectual Property Rights In eLearning

The Intellectual Property Rights In eLearning

Good management of intellectual property (IP) rights is critical for the successful implementation of eLearning, courses and materials. The effective application of intellectual property rights in the creation, development and implementation of eLearning courses is a critical component in the field of education, as it plays it part in a knowledge-based economy. Not long ago, the terms eLearning and mLearning implied laptop computers and mobile carts that were wheeled from classroom to classroom. However, technological advancement has enabled the rapid development of new types of digital publishing and tools which in many instances, have overtaken the current provisions of the law. In spite of this however, there has been significant legal advances and discourse regarding intellectual property rights of eLearning courses and materials. The history of intellectual property rights is one of adaptation to educational, technical and commercial change. It is therefore vital that developers, practitioners, and consumers of eLearning content have a clear idea and understanding of what is permissible with the product of their labors and what is impermissible.

As a growing number of digitized and eLearning courses increase and are offered on a global scale, eLearning practitioners have expressed legitimate discussions and concerns about the legal ramifications of their work and products. For eLearning practitioners for example, the legal lines of what is private content material and what is public content that can be transferrable from one organization or institution to another have become blurry and sometimes misunderstood. Questions of ownership of copyrighted or digitized products also abound as well as issues pertaining the legal download of copyrighted materials and resources, patents and trademarks.  eLearning practitioners often find themselves involved in situations that are less than desirable and that may likely pose legal ramifications. This article promotes awareness about basic intellectual property rights, especially as it relates eLearning content creation and development. It describes the relevant aspects of Intellectual Property (IP) Rights as it relates to the field of eLearning. The article sums up by providing guidelines or best practices about intellectual property rights in the development and creation of eLearning materials and on the use of third party materials. The article concludes with a persuasive note to developers of eLearning courses about the potential benefits of including IPR management in their project planning and management activities.

Intellectual Property Rights and the eLearning Landscape

The issue of intellectual property rights is one of growing importance and increasingly permeate discussions among eLearning experts (Duncan, C., & Ekmekcioglu, C., 2003). The rise of eLearning courses and materials with the capabilities of mobile technologies small enough to carry in one’s pocket, and the increasing power and functionality of these devices, is causing both a shift, and an opportunity for eLearning experts and practitioners. Legal questions and concerns become more crucial as practitioners forge ahead and make significant milestones in the area of content management, content delivery and eLearning implementation. Inherent in this technological advance, are real challenges of intellectual property rights. Knowledge about intellectual property rights have until recently been relatively obscure parts of the eLearning and the mobile learning world but are now rapidly becoming essential. eLearning practitioners crave access and use to vital legal information that will assist them in their content development,  delivery and management. Therefore knowledge about intellectual property rights information is vital for practitioners, individuals, students, digital libraries and repositories as it records who owns the eLearning resources, who can access it and use it, and under what conditions the resources is made available.

What are Intellectual Property Rights?

Intellectual property is the area of law that deals with protecting the rights of those who create original works and in this instance, in the field of eLearning. It covers everything from original plays and novels to inventions and company identification marks. The purpose of intellectual property laws is to encourage new technologies, artistic expressions and inventions while promoting economic growth. When individuals know that their creative work will be protected and that they can benefit from their labor, they are more likely to continue to produce works that create jobs, develop new technology and make processes more efficient. There are three main mechanisms for protecting intellectual property in the United States namely: copyrights, patents and trademarks.

  1. Copyrights in eLearning
    A copyright provides protection for original works of authorship, fixed in a tangible medium of expression including literary, musical, and dramatic works, as well as photographs, audio and visual recordings, software, and other intellectual works. (Hinson, 2015). Copyright protection begins as soon as the work is fixed in a tangible medium. An eLearning practitioner should begin using the copyright symbol immediately development of original works commences, as a method of informing others that he intends to exercise control over the production, distribution, display, and or performance of his or her work. While it is not necessary to file for copyright protection, doing so for work of significant value will make it easier to seek court enforcement of your copyright if there happens to be a material breach. (Hinson, 2015). Copyright protection give owners exclusive rights to reproduce their work, publicly display or perform their work, and create derivative works. Additionally, copyright owners are given economic rights to financially benefit from their work and prohibit others from doing so without their permission. As an eLearning content developer or practitioner, it is important to realize that copyrights do not protect ideas. Copyright protects how ideas are expressed. Copyright protected works for eLearning practitioners includes literary, musical, and dramatic works, as well as photographs and graphics, audio and visual recordings, software, and other intellectual works. A copyright provides protection for original works of authorship, fixed in any tangible medium of expression. (Title 17, United States Code, § 102.) The protected work should be fixed in a tangible medium of expression. (Title 17, United States Code, § 102 § 102.). In order for the work to be "fixed in a tangible medium of expression", it means that it has been set in a form in which it can be perceived either directly or with the aid of a device. The owner of a copyright has the exclusive right to control the reproduction, distribution, performance, and display of the work, and the preparation of derivative works. Original ownership of the copyright is granted to the author of the work. (Title 17, United States Code, § 106.)  But if the author creates the work in the scope and course of employment, then the employer is considered to be the author under the "work for hire" doctrine. A party may also be considered the author of certain works, if the work is commissioned and the contract specifically states that the "work for hire" doctrine applies. (Title 17, United States Code, § 106.) Ownership of a copyright can be transferred. A transfer of the owner's exclusive rights must be made in writing. A transfer of less than the owner's exclusive rights does not need to be in writing.
  2. Patents in eLearning
    Patents unlike copyright are unique inventions that are crucial to the success of many organizations, institutions or businesses. eLearning practitioners or content developers who have developed  new and better products or processes that are unique, useful, and non-obvious, need to protect the competitive advantage this gives them by obtaining a patent. The implications of obtaining a patent for a unique invention is that the holder of a patent can stop third parties from making, using or selling his or her invention for a period of years depending on the type of invention.  Obtaining a patent for an invention as an eLearning practitioner requires a clear understanding of who owns the inventions. The most critical question is does your institution, organization or business own the inventions or do the employees who create the inventions own them? Legally, this may depend on principally on the type of work arrangement you have with your organization, institution or business. An agreement between you and your institution will specify and allocate ownership rights well ahead of your invention. Ensure that you pay attention to the “devil in the details.”  In sum, patents protect an invention from being made, sold or used by others for a certain period of time.
  3. Trademarks in eLearning
    Trademark law seeks to protect others from using the same or a confusingly similar name for their products, as yours. Currently, a majority of eLearning content and materials are no doubt increasingly differentiated and varied and may include digital audio, video, text on a website, animated images, and virtual reality environments. The ability to create content in a variety of ways by utilizing a variety of authoring tools poses critical issues related with trade mark protection. Trademark protection under the law, protects the names and identifying marks of products and companies. The purpose of trademarks is to make it easy for clients and consumers to easily distinguish competitors from each other. A trademark protects the name of your product by preventing other business from selling a product under the same name. Having a unique and identifiable name for your product is an advantage for your institution organization and business.

Implications and Best Practices Of Intellectual Property Rights In eLearning 

Protecting your intellectual property rights is crucial to the success of any institution or organization. In order to do so, institutions need sensible policies and practices for managing the intellectual property rights represented in the field of eLearning.  As a general rule and legally, intellectual property produced in the course of employment belongs to the employer, but, traditionally, for example, individual members of academic staff in higher education have controlled the IP in their publications. It is therefore vital that developers, practitioners, and consumers of eLearning content have a clear idea and understanding of what is permissible with the product of their labors and what is impermissible. It is also crucial for participating institutions and organizations to including IPR management in their project planning and management activities.

A few best practices tips for eLearning professionals regarding patent, and trademarks are:

  1. Do a thorough research. 
    Make sure your idea is not infringing on someone else's patent. To do so, you must conduct an initial or a preliminary patent search. This step will help ensure that your idea hasn't already been patented by someone else
  2. Prototype.
    It is beneficial to develop a basic prototype to determine your product's functionality. This ensures you have a close-to-final design when you do file for a patent. Trademarks: As a practitioner, it is important to be involved in a thorough clearance strategy by analyzing the mark for registrability and protectability, to avoid using famous well know marks, to conduct preliminary screening and order comprehensive searches.
 
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