India January 15 2021 | Sakshar Law Associates 

The prolonged closures of educational institutions – schools, colleges and universities, have compelled institutions to equip themselves with some up-to-the-minute means of imparting knowledge and disseminating information. The shift is ground-breaking as such a quick change and deep penetration of technology has never been witnessed by India’s ed-tech space in the past. Although it is true that a slew of lockdowns across the world, in general, and India, in particular, played a pivotal role in the massive growth of the ed-tech space, however, factors like increase in demand for enhancing skills, higher usage, and deep penetration of internet,etc, too helped the ed-tech players to tap the market. Over the past six years, more than 4000 ed-tech start-ups have been established in India, which should tell you that there’s more to the ed-tech space than just Byju’s (pun intended).

As much as one would like to focus on the brighter side by understanding how this shift was imperative in terms of access to education, skill up-gradation, continuance, ease and incentive for conducting faculty exchange programs, etc, one cannot turn a blind eye towards the dark side of the pedagogical shift.

Although it is true that the shift in India, unlike in Western countries, was adopted by way of a necessity rather than a choice and a need, concerns like that of Copyright infringement, online harassment and bullying, and most importantly, data privacy, among many others, cannot be justified.

The ultimate question that needs to be answered is whether this e-learning boom is a boon or a bane?

The Issue of Copyright Infringement

How often have you seen your teachers and professors forwarding you PDFs, images and DOC files from the internet, let alone forwarding it accredited with the source?

The closure of educational institutions also means inaccessibility to the libraries. This inaccessibility poses a problem since the second-best option for the students and the teachers is to run a simple Google search, download and forward materials, without giving a second thought with regards to the legal consequences of the same.

In India, we have the Copyright Act, 1957 (hereinafter, Act), an extension of the British Copyright Act, 1911, which is the primary legislation dealing with the concept of protection of copyright.

As per Section 14 of the Act, copyright, essentially, refers to a ‘bundle of exclusive rights’ conferred upon the creator or the owner of the work, which could be literary, artistic, dramatic, musical, cinematographic films and sound recordings (Section 13). The rights, previously spoken of, are vested with the owner of the copyright; however, a license granted to a third party could allow such a party to make use of the copyrighted content.

However, that being said, there are certain exceptions made to the stipulated rule and the same is enumerated in Section 52. By virtue of provisions of fair dealing and fair use, the third party can, in certain circumstances, use the copyrighted material without having to take permission of the creator.

The provision of fair use, in simple terms, is an exception to the ‘exclusive right’ of the owner, for it allows the concerned party to reproduce or use the owner’s work, which in the absence of the said provision, would have amounted to an infringement of the provisions of the Act. It clearly distinguishes between deliberate copying and licit use.

Considering the fact that the cardinal objective behind the very doctrine of fair use is to benefit the society by meeting the educational needs, activities like that of photocopying and quoting copyrighted materials does not amount to an infringement.

We also have the provision of fair dealing, which does not have an expressed definition in the Act; however, the concept has been upheld in a shed load of judgements delivered by the courts.

In the light of the above explanation, Sections 52(1)(h), 52(1)(i), 52(1)(j) are to be read. A reading of which will tell you that every material copied by a student or a teacher for educational purposes, in the course of instruction, and in an educational institution does not amount to an infringement. Further, it states that even if the work is not copyrighted, a published collection of the same, with bonafide intent of teaching, shall not be in conflict with the stipulated provisions.

In India, the phrase ‘in the course of instruction’ has a non-restrictive interpretation, which means that the exemptions are not restricted to on-site teaching, but also extends to online modes of teaching.

Further, by virtue of the amendment brought out in the year 2012, uploading, storing and communicating digital copies of the materials available in the physical libraries of educational institutions, is permitted by the Act. Hence, universities will be able to claim protection under the law.

However, policymakers and various other commentators have pointed out the fact that such provisions are insufficient and incompetent to be dealing with the issue of copyright infringement in the digitised education space.

For instance, the application of the law in question is territorial i.e., it is restricted to the geographical boundaries of India; however, e-learning platforms facilitate exchange across borders. Hence, the law is not well equipped to be dealing with cross-border infringements.

Further, the drafting of the provision of fair dealing is as good as not having it in the first place, for it allows only two short passages from the copyrighted content to be used.

Although a license or permission can be taken from the rightful owner, the same takes a lot of time.

Therefore, to conclude, it is imperative that the provisions are updated in order to keep up with the times. Deliberations upon the issue, especially with regard to the provision of ‘fair dealing’ and the rights of the owner are to be made. With an internet boom and the rise in the usage of the e-learning platforms where everything is available at the click of a button, these pregnable provisions are not comprehensive.

The Issue of Data Privacy and Protection

As pointed out earlier, because the paradigm shift in the pedagogy was adopted by way of a necessity rather than a choice, the most undervalued aspect of it is that of privacy. In a mad bid to resume classes quickly, educational institutions that are unfamiliar with the nitty-gritty of technology have neglected the issue of data privacy altogether. When ideally, while dealing with technology, data privacy should be of prime importance and concern.

A term that has grabbed the spotlight among students is that of Zoom bombing. It, essentially, refers to trollers, hackers and unknown and unwarranted participants raiding meetings. To some, it may not appear to be a concern, but in reality, it is very much one. It may not look grave at the beginning for all it is termed as is a joke, but it allows a third party to get its hands on some very personal and important information.

Ed-tech space’s main aim is to ensure that they provide personalised learning to students, and to give effect to the same, they have to collect a lot of personal data, both in terms of kind and quantity and simultaneously develop their processing capabilities. Given the competitive nature of the market, these platforms will not think twice before using student data to their advantage.

Now, the usage of these platforms is not limited to mere exchanges between the faculty and the students, it also houses a lot of other pieces of information like that of student’s attendance records, assessment results, task completion time, attentiveness and participation, and other such data.

Now, this information becomes imperative for the platforms as it helps them in building a profile out of the students through datafication and consequently, suggest targeted (directed towards a certain group of persons) and behavioural (based on one’s web-browsing history) advertisements and serve other analytical purposes. This might remind us of how Google got grilled by the Congress in the US during the antitrust probe for targeting advertisements based on consumer data and dominating the online advertisement market.

The storage and use of data, without the consent or knowledge of the students or the guardians is harmful as it infringes privacy and autonomy.

Hence, perusing privacy policies before agreeing to them is of immense importance.

Currently, the law regulating the use of data in India is the Information Technology Act, 2002 (hereinafter, IT Act, 2002). In the given context, the Act permits companies to sell user data (mostly students below the age of 18 years, here) to third parties at the click of a button reading ‘I agree’, i.e., if the student consents to it. On the off chance, the students may disagree to the same, and opt-out.

But what good is a consent which is given without full knowledge of the consequences?

As recently as 2019, Vedanta, a leading ed-tech firm, faced a data breach, thereby putting information as sensitive as one’s IP address, phone numbers, email addresses, etc of 6,80,000 users at stake.

However, the Personal Data Protection Bill, 2019, tries to addresses the problems and the loopholes of the IT Act, 2002 to some extent. It has a mentioning of the way and extent of storing and processing child data. It also talks about ‘guardian data fiduciaries’ which would be responsible for the processing and use of child data of any kind.

Howbeit, the same continues to be under review in the Parliament and leaves us at the mercy of the IT Act, 2002 and human ethics.

Hence, a mindfulperusal of terms and conditions, in general, and privacy policies, in particular, before agreeing to them is suggested as it is of immense importance.

The Issue of Cyber-bullying

The internet is flooded with videos of teachers getting trolled and bullied for every attempt they make at making the children study. This has overwhelmed the academic circle to the point where teachers are nowhesitant to take part in online classes.

To point out an interesting fact, Microsoft, in the year 2012, surveyed 25 different countriesto gauge the number of cyber-bullying cases. India, just how back then ranked number 3, to date, happens to be one of the top countries to be facing the menace and maintaining a top position in an index that does no good to the country.

Though India is one such country in the whole of Asia to have claimed the most number of lives than any other country owing to this menace, we do not have special laws dealing with cyber-bullying. Some of the provisions entailed in the IT Act, 2002 and the Indian penal Code, 1860 are what we are at the mercy of.

In the given context, we have Section 66E of the IT Act, 2002, which enumerates the punishment for violation of privacy, Section 67 and 67A which talks about publishing or transmitting obscene materials (sexually too) through online mediums, among other provisions.

Under the Indian Penal Code, 1860, we have Section 499 dealing with the concept of defamation (through words, signs and gestures), Section 507 which talks about criminal intimidation through anonymous communication, and Section 509 talks about insinuating the modesty of a woman by infringing her privacy, etc.

In the case of Sharat Babu Digumarti v. Government of NCT of Delhi, AIR 2016, the Supreme Court held that when the offence involves an electronic record, it is the IT Act, 2002 which would apply, and if there is a conflict between the provisions of the Indian Penal Code, 1860 and the IT Act, 2002, the former shall override the latter.

National Education Policy 2020 on the Interface of Technology and Education

The National Education Policy 2020 aims at revamping the education structure in the face of changing times, in order to be in sync with the modern needs and goals of a 21st century education system.

Considering how imperative a role technology plays in the education sector, especially in the given times, the Policy has suggested a list of initiatives that will be taken so as to ensure that the shift is well channelled and meticulously regulated. Some of the initiatives have been listed below:

1. Government learning portals: Platforms such as DIKSHA, Study Webs of Active learning for Young Aspiring Minds (SWAYAM), SWAYAMPRABHA, etc, will be in place so as to assist teachers in conducting online sessions in a more effective and efficient manner. The same shall also address the problem of inaccessibility to practical and hands-on experience. The concerned portals shall be user-friendly, bearing in mind that the shift is newfangled.

2. Developing digital infrastructure: Well developed digital infrastructure has become indispensable for it enables one to keep a track of  and connecting various devices, systems, means of housing and using data, etc.

3. Pilot studies: The Policy also aims at entrusting certain institutions of reputation with the responsibility of conducting studies pertaining to the various aspects of the interface, student-addiction, etc, and at the same time invite suggestions from the populace, in general, so as to make it comprehensive.

4. Digital divide: Considering the fact that there is a limitation with regards to the accessibility of digital education, the Policy suggests that educational programmes will be aired on television and played on radio, especially in Indian languages, 24/7.

5. Teacher training: The Policy also aims at ensuring that the teachers are trained well through trainings at various levels, so as to ensure that they are equally effective while engaging on online platforms.

6. Examinations: Bodies such as the PARAKH or the National Assessment Centre (NAC), National Testing Agency (NTA), and other such bodies will be responsible for framing and implementing new frameworks and strategies for conducting and assessing examinations.

Lastly, the Ministry will set up a dedicated unit which would, essentially, look after the aspects of developing and regulating digital infrastructure, content, and most importantly, capacity, so as to ensure that the needs of students and teachers are met at every level of education and to also give effect to the aims and objectives of Sustainable Development Goal 4 (SDG4).

The provisions of the National Education Policy 2020 do look promising, but as India has a history of having impeccable provisions on paper but zero or improper implementation in real, the execution would be something that everyone would have their eyes on.

Addressing the three issues mentioned above, it is imperative to understand that they not onlyneed strong and substantial legislative changes, but also need strict regulation from the concerned institutions in which such issues are being faced, for it to sincerely serve the purpose and aim with which the shift in pedagogy was adopted in the first place.

The growth and importance of online education was also extensively discussed and provided for in Budget 2020, where the sector bagged a Rs. 99, 300 crore investment, as compared to Rs. 94,800 crores in the preceding year. Various aspects such as infrastructural development through Foreign Direct Investment (FDI) and External Commercial Borrowings (ECB), setting up of higher educational institutions, were two of the many highlights of the same. However, much to the skill-tech and ed-tech space’s dismay, there were no tax relaxations and incentives for them.

Lastly, the online education sector is expected to have a userbase of 9.6 million by 2021, therefore, government support and continuous development is essential.