Intellectual PropertyTechnology Law / Cyber Law
Analysis of EdTech in the wake of Virtual Learning and COVID-19
COVID-19 was declared as a global pandemic in March 2020 and since then, the education system all around the world has seen a rapid transformation, albeit compelled. Owing to the country’s strict social distancing measures; colleges, schools and, universities were shut down and students were sent home from the campuses. This shift from the conventional way of pedagogy brought about challenges and predicaments,  especially in developing countries like India, where there were no signs of digital institutionalization of education in sight. But institutions decided to work with the technical abilities that they possessed in order to save the precious academic time of the students of all fields.
Interestingly, this is not the first time that traditional face-to-face learning has been thwarted due to a pandemic. In 2009, the H1N1 flu also led to the same shift to suspend physical schooling  and fill the void left, with e-learning to avoid risking the spread of the disease. But the shift did not come easy as the students struggled with the availability of reliable and fast Internet with the educators, also not being well-versed with the requisite applications, thereby resulting in them being wrongly bullied by students on account of their lack of technological prowess. The current scenario requires the educational institutes to improve their instructional procedures and include the ed-tech strategies because academia is the epicenter of social interaction and without it, there is, and further would be unprecedented instability.
Many digital learning providers have reached out to students, in their times of need, and made their courses or resources free for use such as JStor, OxfordPress, etc. Although the solutions by these providers have been a boon, it is crucial to scrutinize how ed-tech is regulating and defining the new dawn of learning.
The Dawn of Educational Technology
In the last decade, India’s journey of education technology started with the company EduComp that provides digital solutions and online products to facilitate e-learning. Then, in the years to come, the country saw the rising of EdTech start-ups like Byju’s, Unacademy, and more. With the pandemic shutting down all the physical modes of academic learning, the start-ups began to step on the ladder and provide opportunities, resources, and online courses to the students. The pandemic has brought these companies the boost that they needed, with a wide user base and a more engaging website. The EdTech sector is likely to reach around US$ 2.8 Billion by 2021 and US$10.5 Billion by the year 2025 and interestingly, the pandemic has played a massive role in it.
Education technology is a sector of the education market which aims at developing and advancing education and diversifying the traditional setup of learning. The pandemic has suddenly given way to unprecedented traction to EdTech models and start-ups, so much so, that an investment of US$ 800 million was poured in the first half of 2020 into the sector.  One distinguishing feature of EdTech is that it deals with solving educational concerns by strategizing new alternatives, evaluating current drawbacks, and finally, implementing the so obtained programs. It can range from the usage of instructional methods like projectors, camcorders, video conferencing, AI-powered education, etc. Some examples of education technology are the existence of online schools, distance learning through certificate and degree courses, and so forth.
The reason for the boost in the popularity of these applications is that there is complete flexibility of time for the users, the programs are generally self-paced and the courses are tailor-made for the requirements of the students. While one cannot say that EdTech is replacing the physical classroom experience, it is filling the void with effective learning tools. The use of graphics and quizzes alongside the text gives more space for the growth of problem-solving and critical-thinking skills.
While there are numerous advantages to the concept of education technology, one cannot leave the negatives to the side. In the beginning, when online classroom platforms like Google Meet, Zoom, Teams, WebEx started to make runs, the initial smooth sailing of the transition was thwarted by the incidences of online harassment of the teachers on such platforms. Moreover, there were cases of Zoom-bombing, i.e., the activity when unwarranted individuals join in on a meeting to troll or hack the ongoing lecture. News regarding the commonality of such incidences surfaced and the platforms received a lot of backlash on the lack of security in said applications.
It is evident that with the advancement of the digitalization era, the future of education is EdTech and the synergizing of activities ranging from teaching, evaluating, assessing to the completion of a degree.  One cannot dismiss the fact that the cross-pollination of technology with education has to be analysed with a pinch of salt.
The applications do not have a defined structure of privacy safeguards to protects the students that visit their websites. Coupled with this, the websites also lack encryption which raises concern for many. Further, according to a study by Common Sense, 40% of the companies participate in contextual advertising i.e., advertising based on the content of the page that the user surfs. Another 10% of the companies admit to creating profiles of users and a whopping 89% of the participants denied moderating any social interaction that takes place between two users on their application. This demonstrates the precarious situation of the EdTech framework around the world.
While on the subject, reading into the recent Consumer Protection (E-commerce) Rules, 2020 vis-à-vis the EdTech sector is also crucial. These rules identify their application over two models of e-commerce: inventory and the marketplace models. Depending on whether EdTech companies fall in either of these, the Rules shall govern the way they operate. For example, they mandate information disclosures to be made by the e-commerce entity and publish the same. Obligations are conferred upon these entities to ensure that they function transparently and do not misrepresent to their customers.
In India, this unavoidable shift in the pedagogical style has allowed for instances of blatant copyright infringement, online bullying, and, more crucially- student surveillance. So, the question then becomes, how do we allow the usage of education technology while adhering to the Copyright laws as well as respecting the privacy and security of the students? Moreover, how do we analyse the EdTech companies and their peculiar challenges from a legal and ethical lens?
The Dilemma of Copyright Infringement
In India, the use and regulation of copyrights are governed by the Copyright Act, 1957. It is the primary law for the protection of copyrights. The Act by virtue of Section 14 explains how copyrights are a ‘bundle of exclusive rights’ which are conferred onto the creator for the work (literary, artistic, dramatic, musical, etc.). The Act specifies that such exclusive right always vests with the owner of the copyright. But, Section 52 gives way to exceptions to the rule in Section 14. Section 52  lays down the concept of Fair Use which enables a third party to use the copyrighted work of an owner without the permission of the person. Fair use clarifies the difference between legitimate use of copyright and deliberate copying. Even the TRIPS Agreement  under Article 13 confers exclusive rights on the owner of copyright.
The reasoning behind this is to benefit the community’s educational requirements thereby protecting the making of copies of the owner’s material and quoting the copyrighted material as ‘fair use’ under the wide scope of Section 52. Section 52(1)(h) stipulates that anything reproduced by a student or a teacher for academic purposes is not an infringement of copyright. Moreover, Section 52(1)(g), says that a publication, wherein the matter is mostly non-copyrighted, for the purposes of academia is not an infringement of copyright. In case, the usage is not covered by the definition of fair use, the third party is deemed to have infringed the copyright of the owner and could face legal consequences due to the same.
In India TV Independent News Pvt. Ltd. v. Yashraj Films Pvt. Ltd., the concept of fair dealing was recognized and musical recordings and cinematographic films were brought under its ambit. In another case, Civic Chandran v. Ammini Amma, it was held by the court that a parody is not an infringement under the Act if it has not been misused.
It is through the lens of such judgments that the use of technology in education should also be brought within the purview of the Act. The Copyright Act 1957 does not talk about photocopies of copyrighted work but in the current situation caused by the pandemic, the ambit of education has to be widened enough to incorporate virtual learning under copyright protection.As explained above, EdTech is on the rise and is the ‘next big thing’ in the education sector, therefore the question we need to put forth is whether important legislation like the Copyright Act must also be modernized to encapsulate the operation of EdTech and protects the consumers as well as the virtual educators.
Privacy and Data Protection
Since the sudden shift was adopted due to a necessity and not a pre-planned upgrade, the area of privacy and security has suffered the most. For the sake of continuity of academic sessions of students, the cost that we had to pay was unrestricted access and unwarranted permissions to third parties. As discussed earlier, instances of zoom-bombing became rampant in addition to security issues. The Information Technology Act, 2002 states that third parties can sell their data if the student consents to the same. Given, the student must be of the valid age to give consent, that is above 18 years of age. In the month of June 2020, the Madras High Court entertained a PIL under Article 226 on the grounds that the online classes are being conducted in the absence of schemes as provided for under the IT Act. The court held that the absence of guidelines gives way to the lack of a congenial environment for a student.
Even the Personal Data Protection Bill, 2019 provides for the scope of processing data of students and children. It has a provision of ‘guardian data fiduciaries’ that are responsible if any data of a child is collected and processed by third parties. Hence, the government needs to review the Bill and put it into action.
When we talk about privacy concerns, the concept of Remote Proctored Tests [RPT] must be scrutinized. RPTs have been in controversy lately due to the nature of surveillance activities that are attached to them. While the universities justify the use of RPTs to maintain the integrity of examinations and to prevent unfair means, students have been protesting such use on the grounds of privacy issues. As this technology takes over both audio and video surveillance of the students in addition to biometric identification and remote system access, the question of consent should be critically analysed before upholding their use. The IT Act, by virtue of Section 72A, states that personal data should only be collected with the user’s explicit consent. In the present state, where the bargaining position of the students is on the low, their lack of options has been constructively interpreted as consent by the authorities that have sanctioned the use of RPTs.
The data that the websites could collect (such as their names, location, contact numbers, biometric identification data) and then sell to the third-party service providers. Under the draft Bill of 2019, the personal data of an individual includes his/her biometric data and the same cannot be collected without the voluntary consent of the user. In addition to this, the Sensitive Personal Data Information Rules 2011 under the IT Act includes the word ‘biometric data’ in its domain, and such data can only be collected or disclosed with the consent of the individual.  Therefore, AI proctoring poses many threats and when balanced against its advantages, it is sub-optimal and should be done away with unless a robust protection scheme governs its operations. In the light of privacy outbreaks, institutions should look at alternatives like Open Book Examinations that do not work on suspicious surveillance technology. In an RTI dated October 2020, Internet Freedom Foundation had asked CBSE to provide reasons for their move wherein a student has to upload a live image and to get access to his/her digital repository at CBSE. This RTI was filed because the use of facial recognition technology seemed absurd and raised a number of privacy concerns.
COVID-19 has negatively impacted all phases of life, a major blow has been to the educational institutes around the world. Administrators of the institutions have been since finding alternatives to resume the classes but balancing it with the health and security of its faculty as well as students has been a challenge. Apart from this, the use of the EdTech platform opened the floodgates for privacy and surveillance of students without their consent. The Copyright Act was also scrutinized on the grounds that a comprehensive update is required for the changing times ahead. The Act must include provisions dealing with the digital environment to the same extent that it does with physical spaces.
In addition to this, during times extraordinaire like today’s, fair use provisions must be read constructively and interpreted as widely as possible because the digital space has not yet been fool-proofed for student use. For the sake of a sound and surveillance-free digital space in the years to come, the State first needs to ensure that its prevalent laws do not confine individuals to the extent that capitalistic digital models that encroach upon their privacy aren’t the only alternatives available to its youth.
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