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Elearning: Three commercial challenges faced by providers

Raj Shah flags up a few less obvious issues in the move to digital learning. 

With a soaring number of organisations switching to virtual classrooms during the pandemic to meet the training needs of their staff, providers of online learning solutions are enjoying unprecedented demand.

Yet the speed and scale of this uptake in recent months has left elearning providers with little time to grapple with the accompanying challenges. The following considers three in particular and suggests how these might be managed.

New and bespoke content

While ‘off-the-shelf’ products that deliver mandatory training to new joiners in professional industries (for example, on health and safety) have been around for some time, many businesses, faced with the impossibility of sending staff to attend bespoke face-to-face courses, have engaged elearning providers to devise equivalent online courses that can be completed remotely.

Unless a provider has pre-existing images and video footage that can be easily repurposed, it may have difficulty sourcing some of the audiovisual material likely to be required for any such bespoke content, particularly since the lockdown restrictions have impeded filming and photography activities.

Those unable to rely on customer organisations themselves providing relevant material may be tempted to use on what is readily available online. This is fraught with risk if the copyright implications are not carefully considered.

Simply incorporating an image found on Google Images into an elearning product will, even if explicitly credited to Google Images, likely constitute copyright infringement.

Although this practice may well be common amongst free-to-view websites, Google Images is rarely the actual copyright holder of images displayed in response to search queries and is therefore unable to grant the permissions required.

A more advisable solution would be to purchase material from stock libraries of professional photographs and videos on a royalty-free basis. It is important, however, to confirm beforehand that the terms of the licence granted permit the intended commercial use.

Smaller providers may also lack the human resources required to complete a bespoke project. Many have engaged freelancers to work on specific projects in the past year, often without any contractual documentation in place.

Unlike employees, however, freelancers retain the copyright in any work they create, unless they have agreed otherwise in writing. Before instructing a freelancer to create new content for a specific project, elearning providers must secure ownership of all intellectual property rights in the freelancer’s output by way of a written agreement.

Without this, the freelancer will retain control over how this output is used, potentially even claiming for additional compensation later on.

Data protection and security

Customer organisations are increasingly interested in solutions that more closely replicate the live learning experience. As online learning products become more sophisticated, providers are processing ever-greater quantities of personal data relating to course or module participants.

A common misconception persists that personal data only relates to someone’s name or address; As defined in the GDPR (a UK-specific version of which still applies after Brexit), personal data means anything that identifies, or can be used to identify, a living individual.

In practice, therefore, an audio or video recording of a participant, feedback relating to a particular learner provided in a virtual classroom, and even the IP addresses of enrollers can all constitute personal data regulated by the GDPR.

Any provider of online learning must therefore invest sufficient time in achieving GDPR compliance in order to provide the requisite assurances to customer organisations. In light of the potential regulatory fines that can be imposed for non-compliance (up to £17.5m or 4% of worldwide turnover, whichever is greater), customer organisations will unsurprisingly be deterred from providers that have overlooked this issue.

Careful thought should be given to what information will be collected about a participant, where that information will be stored and consulted (especially if any of it is intended to be stored on an overseas server or accessed by anyone located abroad), who can access it, and what information is given to participants about how their personal data is handled.

If any ‘special category’ or particularly sensitive personal data is likely to be collected (for example, information relating to a participant’s ethnicity for the purposes of an online discussion about racial diversity), then a data protection impact assessment may need to be conducted beforehand.

Fair compensation

So-called ‘scope creep’ and shifting goalposts, particularly in the context of bespoke projects, is a common source of frustration amongst developers of online learning solutions, especially if receiving payment depends on achieving certain milestones.

Customer organisations with little prior experience of commissioning bespoke products prior to the pandemic frequently underestimate just how much time and effort and time goes into the development of a well-designed solution.

Having in place a solid set of standard terms of business that specifically address these circumstances can do much to avoid having to enter into time-consuming and delicate negotiations that could jeopardise the working the relationship, particularly if there is a clear clause that a provider can point to when explaining its position.

Ideally, elearning providers should incorporate a clear ‘change control’ procedure into their standard terms, which set out what steps must be followed if the project requirements need to be altered. This could also refer to a rate card that sets out fees for additional work on a time-and-materials basis.

The COVID-19 crisis has catalysed what is likely to be a paradigm shift to the way training is delivered to those working in the professional services sector. Despite the roll-out of vaccinations this year, a significant proportion of Britain’s office-based workforce has expressed a clear preference in continuing to work remotely for at least part of the regular week.

Elearning providers would therefore be well advised to implement measures now to avoid the issues highlighted above plaguing what is undoubtedly set to continue to be a fruitful period in the industry.

About the author

Raj Shah is an associate at law firm Collyer Bristow LLP.

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