A Quick Skim of Legal Considerations in Instructional Design
By Shalin Hai-Jew, Kansas State University
From the outside, instructional design (ID) looks like something that might require a lot of technical expertise in order to get learning objects to display and interact and record just right within whatever technical environment it has to function in, but I suggest that it also includes a lot of rule-following for legal considerations. Similarly to technological rules, legal ones are constantly changing and being updated. In general, though, the legal rules fall into three main areas:
(1) Intellectual property
(3) Privacy protections
While there are nuances to how the laws in these three categories are applied during the instructional design process, the learning is usually acquired during the design and development work and accrues over time. How the various laws and policies are interpreted and applied depend in part on the local leadership, the owners of a project, and the development team. That said, a major part of the responsibility for “legal” instructional design falls to the work of the instructional designer. If colleges and universities are high profile and “deep pockets,” they are targets for those who may feel that their legal rights have been contravened. In that light, it is important to build cleanly from the beginning.
And as with anything in ID, it helps to know the general rules at the beginning—so that clients may be notified and made aware. The legal aspects should be part of the design from the beginning because designing correctly helps save on costs later down the line. The legal aspects should be integrated with every step in development, in order to ensure that the created contents are appropriately created. There are some work-arounds as well which make the work more efficient and accurate. This article will highlight some legal-focused instructional design approaches.
(1) Intellectual property
The General Principles of the Issue: The moment that a person has created something original value in a unique form, that object has de facto copyright protection even if he or she has not filed the object with the Library of Congress or placed the © symbol next to the contents. That protection generally lasts for the person’s life and 70 years. Those who create contents for online use have this protection. Those who create contents for online use and who want to use others’ contents have to respect others’ copyright protections, too. (In institutions of higher education, the campuses have interests in created contents for online teaching and learning. While faculty usually have full ownership over their own publication materials—articles and books—they actually usually relinquish some or all rights to their online courses. Whatever the terms, this should be spelled out by campus policies.)
If the creators of original content want to, they may release their contents for any sort of use by putting the item out in the public domain. (All copyrighted contents eventually flow to the public domain when sufficient time has passed. The idea is that people should stand to benefit from the work of others in society, but those who would create original contents should have a period from which they may benefit from their own work—so they will not lose the incentive to create.) Many in the current age have used the Creative Commons licensure to release limited rights to others to use what they have created (https://creativecommons.org/licenses/). These licenses may require attribution, restraint from editing, non-commercial use, or some other strictures. There is a Creative Commons license that releases contents without restriction in their Public Domain Mark (https://creativecommons.org/about/pdm/).
When people use or mention others’ brands or companies, they need to find out whether the brand or company name is trademarked. Trademark is indicated by including ™ after the name, and a registered mark is indicated by including ® behind the name. The United States Patent and Trademark Office (USPTO) maintains an up-to-date record of all word marks and / or visual marks, and they make this information available through their Trademark Electronic Search System (TESS) database (http://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4801:iqrj9y.1.1).
Other truisms. Read the fine print in depth. Most image-sharing sites require users to indemnify them, so if there are lawsuits, the user bears the full brunt of the legal proceedings. If work establishing copyright was not documented, it never happened. This means that everyone on the development team needs to maintain records of what was used, where it was acquired from, what the terms of the usage are, and so on. Document, document, document. Also, if the learning is commercial in any way, then a whole other set of even higher standards apply! What these are are beyond the purview of this short article.
General Places to Check for Advisement: It helps to read generally on U.S. copyright law and also review the IP policy of the institution. Librarians can be very helpful in providing guidance. For very sticky IP issues, the institution’s legal counsel may have to be consulted (such as in the drafting of an IP policy for a web service created on campus).
Scenario 1: A faculty member has acquired a small grant to update a pre-existing course. The course has legacy contents—slideshows, articles, and data sets—and he or she only recently realized that intellectual property rights have to be protected in online courses.
Scenario 2: An administrative unit on campus would like to build a series of automated trainings to deliver to various sub-groups on campus. They want an efficient way to build the trainings while still adhering to extant laws.
Scenario 3: A principal investigator (PI) is working on a grant for a course or a course series. He or she (or they) would like advisement on what is needed to build a course or course sequence in a legal way.
For each of the above scenarios, it is important to answer a few basic questions:
What sorts of contents does the faculty member/administrator/principal investigator want to include in the digital learning objects, courses, and course sequences?
If all the contents are original and newly created, then it is easy enough to establish ownership (assuming that the contents are created in a law-abiding way).
If there are pre-existing contents, then the next question is whether the pre-existing contents were created correctly with proper intellectual property handling. Are there records of copyright releases? If so, did whomever enable the release have legal standing to offer the release? (For publishing companies, their legal counsel usually has to handle the copyright releases. A book rep does not have legal standing to release copyright on copyrighted materials.) If the contents are from a public domain, was there documentation of where the articles, images, videos, and other digital contents came from? If contents were found from a Creative Commons Search (https://search.creativecommons.org/), did the individual track copyright to the original authors and verify the type of Creative Commons licensure used for that release? Was a proper record kept, and has the user abided by the rules of the share?
Those who’ve chased copyright for instructional design will realize that identifying a copyright holder may be difficult. People who believe in mash-ups and remixes will host others’ images on their websites when they themselves do not own copyright. It is possible to use reverse image search tools like TinEye (https://www.tineye.com/) to try to find an original image and an original copyright holder, but that can be challenging. If an image has been edited, reverse image searches are less effective.
If a work has been apparently “orphaned,” it is still important to conduct due diligence to try to find the original owner and then to keep records of that search. If it’s not documented, it didn’t happen.
What is optimal would be to create one’s own images or to have access to a set of images with known provenance and legal releases. Then, when building the online learning, only use very clean raw images and such. This self-build concept applies also to audio files and video files… (The cost and effort though may be prohibitive. Also, many faculty are not fully comfortable with the required technologies for such captures, which may be another disincentive.)
Using copyrighted formally-published articles
Many published articles are now open-access and widely findable and readable (even if they are not open-source). It is a good idea to check Google Scholar (https://scholar.google.com/) for particular works and to see if there is an open-access version. If the articles are widely available, the links may be shared with learners.
If articles are easily findable on the databases that the college or university subscribes to, it’s better to send learners to log in and access the copyrighted contents themselves.
Some electronic repository contracts enable faculty to post copyrighted contents in their password protected classes. The terms of these contracts have to be explored with whomever handles those subscriptions. If that is available, this offers a simpler one-point-of-contact way to be able to capture a broad range of article contents for learners.
For students with accessibility needs, if they have purchased a book, the book may be scanned and provided to them in a more accessible screen-readable format. It is not legal for faculty to just scan a book as a searchable PDF (portable document format) and then upload it for broad use by their other students. This would be the equivalent of publishing and distributing a copyrighted book.
Spelling out IP policy in the online course
Many publishers require that online courses have an IP policy that all students must read and observe…before they will share copyrighted contents with online instructors. A sample text follows:
© The materials in this online course fall under the protection of all intellectual property, copyright and trademark laws of the U.S. The digital materials included here come with the legal permissions and releases of the copyright holders. These course materials should be used for educational purposes only; the contents should not be distributed electronically or otherwise beyond the confines of this online course. The URLs listed here do not suggest endorsement of either the site owners or the contents found at the sites. Likewise, mentioned brands (products and services) do not suggest endorsement. Students own copyright to what they create.
Trademarks ™ and registration marks ®
To establish whether a name or mark is trademarked or registered, it is important to visit the United States Patent and Trademark Office (USPTO) (http://www.uspto.gov/) to check. The information below shows the record for the Quality Matters™ trademark (http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4801:ixjln7.4.1).
Figure 1: QM Quality Matters(TM) Trademark Record from the USPTO's TESS System
To access the above record, though, it took a little clicking around through the 56 records identified in the Trademark Electronic Search System (TESS) available here http://www.uspto.gov/trademark.
The General Principles of the Issue: The basic concept behind accessibility is that digital contents should be accessible for as many people as possible, no matter what their various mixes of perceptual [sight (visual acuity, color perception, contrast), smell, taste, touch, hearing], cognitive (symbolic processing), and mobility capabilities. As many people as possible should have access to the informational value of digital imagery (through alt-texting), audio (through transcription), video (through closed captioning), and others. If animations are used, learners should be able to control the pace and speed of the animations. No strobe effects may be used because these may cause epileptic seizures in some. In terms of interactivity, the mouse should not be a required input device; keyboard combinations should be available for all interactivity (because keyboard combinations may be actuated using other input devices used by people with mobility issues). Scanned articles should be searchable PDFs, not image files. Color should not be used as the sole means of conveying information in visuals. Data tables should be properly labeled to be readable by screen readers. And so on.
Ideally, all courses will be fully accessible at the moment of creation. However, many online courses require accessibility retrofitting. Also, many schools do not make courses accessible unless there is a real-time need, at which point there is a huge effort to try to ensure accessibility. This latter de facto approach is not sustainable and actually not legal. Online courses should be accessible from go.
General Places to Check for Advisement: WebAIM has a helpful Section 508 Checklist: http://webaim.org/standards/508/checklist.
Scenario 1: A faculty member uses a built-in video recording system in the classroom to tape contents for a parallel online course. In the online course, there is a deaf student. The video has content which is not visually readable on the screen and is conveyed only by audio.
Scenario 2: A student with visual acuity issues and symbolic processing challenges is accessing slideshows to learn the main points in a particularly difficult learning sequence. The images are not alt-texted, so when the screen reader moves through the slideshow, the images do not have any linked data. The names of the images themselves are not particularly insightful either but just numbered: image1, image2, image 3. In the same class, this student is having a hard time making it through the assigned readings.
Scenario 3: A major figure in a particular discipline will be speaking to a large group of students in a face-to-face (F2F) course. The instructor has acquired permission to capture the live event and to webstream it into an online course. The instructor wants to make this event as interactive and rich as possible.
- Text files should all be screen readable.
- Text files should be structured with hierarchical text, so that it is clear if text is a header, subheader, or body text.
- Slideshows should be labeled.
- They should have a clear sequence.
- If there are transition slides, these should be used consistently.
- All images in slideshows should be alt-texted.
- All audio files embedded in slideshows should have a text transcript.
- All videos embedded in slideshows should be closed captioned (timed text).
- Image files should be accurately alt-texted (with the informational equivalent of the image).
- Image files should not use color alone to convey information.
- Audio files should be accompanied by transcripting.
- Videos should include accurate closed captioning.
- Videos should not contain sections that are conveying information only by color.
- No strobe effects should be in any part of the videos.
- Universal file types should be used to be as accessible as possible.
- Between proprietary and open-source file types, many would suggest going with open-source.
- Assessments should be as accessible as possible.
- Assessments should include extra time for those who need it (based on document accessibility challenges).
Simulations or demos
- Interactive simulations should be accessible using keyboard shortcuts.
- Users should be able to control the pace of the simulations.
- No strobe effects should be part of the simulation.
- Users should be able to repeat the simulations (or demos).
(3) Privacy protections
The General Principles of the Issue: In the Western tradition, people are thought to have rights to not share information about themselves that they do not want to. This privacy “bubble” exists during a person’s life and applies in spaces where he or she may reasonably expect privacy (for example, it is not considered appropriate to use a telephoto lens to photograph or video-record inside a person's home from outside because that contravenes an expectation of privacy in a private space and is trespassing)…and privacy exists around certain types of information (such as health information).
General Places to Check for Advisement: In the educational context, the Family Education Rights and Privacy Act (FERPA) is a good place to start. http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
It would be a good idea to review other applicable media law (since publishing people’s recorded likeness—image, voice, actions—requires their express and informed written permission). The use of information related to children is even more complex since they cannot legally give consent.
Privacy protections apply to data handling, too, so that protected data does not leak or get misused.
Scenario 1: An instructor wants to videotape K-12 students in a F2F class—taught by preservice teachers—in order to use some video sections in an online course. The students’ parents have already signed a general release saying that the learners may be videotaped as part of the teaching and learning, but the release does not allow any of the footage to be used in an online course.
Scenario 2: In an online course, case studies based on real-world situations are used to help students troubleshoot a situation and make decisions. An instructor wants to use a real-world case involving a real student. Even after changing names and locations, the instructor thinks that there is enough information there to re-identify the actual student. If the original student is identified, it could cause harm to that student’s psychological well-being and career.
Scenario 3: Students have gone on a field trip together, and they have shared their experiences via social media. Some of the microblogging messages, images, and video shorts would make a great addition to an online course, to give future students a sense of what a learning fieldtrip may be like.
In all the above scenarios, additional media rights releases will have to be attained that spell out how the digital contents will be used, how much information is released with the digital contents, and so on.
If there is controversial information, as in Scenario 2, there are other risks—of potential defamation (harm to a person's reputation based on the sharing of erroneous information) through slander (spoken defamation) or libel (written defamation), and other risks.
Generally, if a person’s likeness will be captured in any way, the individual should be fully informed, and he / she should sign over rights for their likeness to be captured. (A "likeness" can refer to his or her image, voice, name, professional position, and so on.) In one instructional design context, a client had made up a name for a certain character in a scenario--without checking to see if that name belonged to an actual living person or not. What corporations do is they will copyright the names of their employees (who give them permission), and those are the names used in documentation and scenarios. (In terms of recording people, in many states, “two-party consent” is required before one records another. This means that both the individual recording and the individual being recorded have to consent. In other states, there is "one-party consent," which suggests that only the person doing the recording has to know that the recording is taking place.) Nothing about others should be misrepresented in the digital recording. For example, if an actor is used to create a re-enactment, that should be made clear. A person’s personally identifiable information (PII) should not be used without permission and without a deep analysis of whether it is necessary to share PII.
(Disclaimer: This article is not legal advisement, and the writer is not a lawyer. This is written as an informational work only. Anyone who references this information does so at his / her own risk.)
About the Author
Shalin Hai-Jew works as an instructional designer at Kansas State University. She has designed online instruction for the Boeing Co., WashingtonOnline, and a number of colleges and universities. She may be reached at firstname.lastname@example.org.
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