- Email: [email protected]
Legality, the web and nurse educators
Nurse Education Today 30 (2010) 553–556
Contents lists available at ScienceDirect
Nurse Education Today journal homepage: www.elsevier.com/nedt
Legality, the web and nurse educators Carol Haigh * School of Nursing, Manchester Metropolitan University, Manchester M13 OJA, United Kingdom
a r t i c l e
i n f o
Article history: Accepted 14 November 2009
Keywords: Copyright Virtual learning technologies Web 2.0 Nurse education
s u m m a r y Nurse lecturers are becoming more aware of the opportunities that web 2.0 offers and are slowly moving into the world of cyber-teaching. However, few consider the legal ramifications of this new teaching trend and how vulnerable they may be when posting information or teaching materials to the World Wide Web. The purpose of this paper is to explore the legal issues inherent in the use of virtual learning technologies. This paper poses a number of questions that novices in the world of virtual learning technologies may wish to consider. The paper makes some recommendation which may help to ensure that not only can nurse educators fully exploit the opportunities offered by the World Wide Web but they can do so in a legally responsible manner. Ó 2009 Elsevier Ltd. All rights reserved.
Introduction It is difficult to imagine any single development, within the last decade that has impacted upon nurse education to the extent that the surge of digital learning technology has. Podcasting, social networking sites and all of the opportunities offered by the second generation of web design (see Table 1) that allow for information sharing – known as web 2.0 – have expanded the horizons of the nurse lecturer beyond the classroom to the whole of the global education community. Nurse lecturers are becoming more aware of the opportunities that web 2.0 offers and are slowly moving into the world of cyber-teaching. However, few consider the legal ramifications of this new teaching trend and how vulnerable they may be when posting information or teaching materials to the World Wide Web. The purpose of this paper is to explore the legal issues inherent in the use of virtual learning technologies. This paper is not designed to provide legal advice or guidance but is an overview of the issues surrounding the use of cyber-space as a teaching tool. Thus, to equip those nurse lecturers who wish to embrace the possibilities of web 2.0 the paper will pose a number of questions that the novice may wish to consider before they begin to develop cyber-materials. What is copyright? The 1886 Berne Convention was the first international attempt to lay down a common framework and agreement between signatory nations in respect to Intellectual Property rights. The current version of the convention is the Paris Act of 1971 (UK Copyright Service, 2009). The convention is administered by the World Intellectual * Tel.: +44 161 247 5914. E-mail address: [email protected] 0260-6917/$ - see front matter Ó 2009 Elsevier Ltd. All rights reserved. doi:10.1016/j.nedt.2009.11.008
Property Organisation, (WIPO). This is a specialized agency of the United Nations dedicated to developing a balanced and accessible international Intellectual Property (IP) system. This is an important development as the geographically independent nature of cyberspace means that international boundaries become increasing eroded. WIPO has a mandate from its 184 member states to promote IP across the globe and to liaise with other relevant organisations. Member countries include Australia, Canada, The United Kingdom (UK) and the United States of America (USA). In the USA, the Digital Millennium Copyright Act (DMCA) was signed into law by in 1998. This legislation implements two 1996 World Intellectual Property Organisation (WIPO) treaties (US Copyright Office, 1998). In the UK, the law on copyright is scheduled for review in the light of recent issues surrounding illegal on-line file sharing (Forte, 2009). WIPO makes very clear distinction between two terms that are often used synonymously; Intellectual Property and Copyright. They suggest that Intellectual Property refers to broadly to anything that is created by the human mind, but differentiates between industrial property rights which include ‘‘. . ..inventions, industrial designs, trademarks, service marks and commercial names and designations. . ..” (World Intellectual Property Organisation, 2004) Whilst copyright refers to ‘‘. . ..literary, artistic and scientific works belong to the copyright branch of intellectual property. The areas mentioned as performances of performing artists, phonograms and broadcasts are usually called ‘‘related rights” that is, rights related to copyright”.
(World Intellectual Property Organisation, 2004)
554
C. Haigh / Nurse Education Today 30 (2010) 553–556
Table 1 Examples of web 2.0 communities and services. Blog
Folksonomies
Mashup Podcast
RSS
Second Life
Social Social
Twitter
V-Blog Video sharing
Wiki
A blog (contraction of the word weblog) is a site which allows for an individual to post regular entries of commentary, opinion of event description Folksonomies developed as a result of social software applications such as social bookmarking and photograph annotation. Tagging allows users to collectively classify and find information. Some websites include tag clouds as a way to visualize tags in a folksonomy. For examples see http:// en.wikipedia.org/wiki/Tag_cloud A mashup is a web application which allows for data from more than one source to be edited to appear as a whole A portmanteau word generated from i-pod and broadcast, a podcast is a presentation or a programme which is available for download as a digital file. They can be audio or video files. The advantage of podcasts from a student’s viewpoint is that they can be returned to many times RSS (or Really Simple Syndication) allows for the content of one site, one which is regularly updated, to be accessed by another in a different context. For example – news programmes will allow users to sign up for an RSS feed of their headlines or breaking news. The term ‘web feed’ is beginning to replace RSS. Clicking on the RSS icon (see below) initiates the user subscription
Second Life is the best known of the virtual reality worlds that exist. Within Second Life users can hold meeting, give seminars and practice clinical and communication skills within a safe virtual environment. Individuals are represented by an avatar which carries their chosen identity in that world networking networking sites allow for the creation of on-line communities of individuals with common interests. There are many such sites, for example Bebo, My space, Facebook. Different sites appeal to different age groups and different countries. Sites can be open for all to view or restricted to those approved by the site owner. Although Twitter is technically a social networking site it differs in that its content is limited. Users have 140 characters in which to answer the question ‘what are you doing’? Some people such as Barak Obama and Alistair Campbell use Twitter in clever and intelligent ways to highlight issues or direct readers to new blog entries A V-Blog is a blog comprised of video, rather than text, postings Video sharing refers to websites where individuals can post their video clips. Some sites charge, but the majority of them offer are free to use. Many services have options for private sharing or open publication options. Often feature videos which are example of mashups A wiki is used to create collaborative websites, to power community websites, and facilitate note taking. Popular with nurse educationalist wikis can be used to facilitate discussion and sharing of information on health related topics
Thus, it can be seen that the majority of the material that a nurse lecture is likely to post onto the World Wide Web will fall within the copyright branch of Intellectual Property.
Who owns my material? Most WIPO signatory countries take the stance that, if you develop material in the course of your employment, copyright on that work is owned by your employer. Generally the law takes the viewpoint ‘‘that in a work made for hire situation, the ‘‘author” of the work is no longer the individual who created the work. Instead, the ‘‘author” is considered to be the entity which hired the actual creators of the work (such as a corporation for whom the
author works as an employee)” (Tysver, 2008). It has been noted that this may have potential problem in the academic environment where working hours are fluid and flexible, materials may be created at home on personal, i.e. non-employer supplied, computers and outside of ‘traditional working hours (Claerhout, 2004). Nonetheless, universities generally retain copyright to academic and educational materials. If, as often happens, an educator moves to another university, copyright on their educational material, hard copy or cyber-space based, remains with their previous employers. Many universities operate a system of goodwill, in which the educationalist who originated the work retains the right to use it, for teaching and in academic publications, providing the initial university is acknowledged (Claerhout, 2004). Simonson et al. (2003) describe what they refer to as a hybrid model of ownership in which ownership of educational materials is with the educator but ownership of the course or programme of study is held by the university. In practice this means that any lecturer moving to a new university can take their teaching materials with them whilst their previous employers can continue to run the original programme, including using the teaching resources as designed. This is often the case; however it is sensible to check before taking up a new post. Educators who post videos or V-Blogs on sites such as YouTube or Metacafe need to consider copyright issues, especially if such materials will also be used on web sites or in classrooms. Basically, if the material posted originates with the educator then copyright remains theirs. It is also becoming increasingly common for nurse educators and students to form groups on social networking sites. Whilst, generally, copyright to any material on such sites belongs to the originator it is worth knowing that some sites reserve the right to use your name, likeness and image for any purpose, including commercial or advertising. Such sites usually have an option on their ‘settings’ page which allows the page owner to block this. However, nurse educators are strongly advised to read a site’s terms of use before sanctioning any group related social networking activity (see, for example http://www.facebook.com/terms.php or http://www.bebo.com/TermsOfUse2.jsp).
Who owns third party material? Digital copyright law across the globe is in a constant state of flux as technologies continue to develop apace. In the UK copyright law states ‘‘Copyright is infringed when a third party. . .. all or a substantial part of an in copyright work owned by a third party”. The obvious difficulty in this statement is the use of the word ‘substantial’ with no clear indication of what actually constitutes a substantial amount since a key sentence, table, figure or paragraph could be argued to be substantial as it is crucial to the work in question (Higher Education Funding Council, 2008). From an educational stance, this is an important point when considering the third party material that is contributed to educational blogs and wikis. These techniques, which are useful to educationalists as methods of creating debate and discourse in a cyberspace student community, depend upon comments being posted by third parties, either students or other lecturers. In these situations is it not inappropriate to suggest that such posts will be alluded to without formal referencing which at best may attract a charge of plagiarism and at worst be an infringement of copyright. Afori (2009) postulates that the concept of the ‘‘implied licence” goes some way to addressing the copyright problems inherent in such digital media. An implied licence exists when one party (the licensee) is permitted to do something that would normally require the express permission of another party (the licensor). Implied licenses may arise when the actions by the licensor lead the licensee to believe that it they have the necessary permission.
C. Haigh / Nurse Education Today 30 (2010) 553–556
For example, if other students copy an earlier blog post into their response, the originator of that post is deemed to have given implied licence for them so to do. In the UK, guidelines suggest that that a simple test of implied licence is to pose the question ‘‘If I were the rights owner, would I be likely to object if my materials were being copied in this way?” (Higher Education Funding Council, 2008). If the answer is in any way unclear the educator is advised that implied licence cannot be assumed and obtaining copying permission is recommended. It is clear that the concept of the implied licence must be viewed with caution. There is a common misconception that the internet is copyright free, although this is far from the case (Haigh and Jones, 2005). Thus, the development of web pages, for example, does not imply copying consent. This has issues for those nurse educators who fear that their students are constructing essays around material download from web pages. Broadcasting sites such as YouTube can be very positive in terms of accessing educationally useful materials to supplement teaching sessions or act as additional information for students. However, if the video in question was created by someone else then educators must beware of possible copyright infringement and seek usage permission from the owner or, at the very least, ensure that the owner of the work is credited before suggesting it to their students. When owners of videos publish them they are often given the option to enable or disable the EMBED code for their videos. The embed code is the HTML code that is displayed at the side of a video; this allows third parties to add the video to their web pages. Heng (2008) notes that in theory, enabling the EMBED code for others to use could imply permission for third parties to use the video in their own web pages. Another challenging area surrounding the use of third party material is the recording of conversations or debates for podcasting purposes. This, more than any other issue, highlights the effect that technology has had upon education. In the past the input from external contributor was ephemeral and fleeting, once delivered to a classroom of students it was gone. However, a podcast is a permanent entity, often accessible to a wider community than has previously been the norm. It has be argued that the most engaging podcasts are those which are formatted as a conversation or interview between two or more individuals – this may be a formal interview setting or may be a recording of a lecture delivered by two or more lecturers. In these instances each individual holds the copyright on their verbatim responses. In many interview scenarios, there may be an implied license to use the materials, but it safest to get written consent or record the interviewee’s verbal consent before the interview is incorporated into a podcast (Vogele and Garlick, 2007). A further area requiring consideration is the use of music in podcasting. This can be a particular problem if students are encouraged to produce their own podcasts in educational settings. If such material is being hosted on the university servers then it is possible that the university may bear vicarious liability for any breech of copyright, similarly if a lecturer breeches copyright by attaching music to a podcast. Some people believe that some music, typically classical, is free to use since the composer has died. This is a false premise since, unless one has access to an original Mozart recording (highly unlikely) then copyright rests with the performer of the piece and so copyright infringement is probable. The most effective way for podcasting educators to protect themselves, their students and their university is to use material that is protected by a Creative Commons Licence. Under a Creative Commons Licence songs can be freely used providing the licence guidelines are adhered to. Most songs are licensed under the Attribution-non-commercial-noDerivs 2.0 licence which means that others are free to copy and distribute a work so long as the original creator is given credit, the work is not being used for commercial purposes and the work is not changed or
555
built upon. Additionally, the Creative Commons Sampling License allows the use of excerpts of a work but not the entire piece and is useful for podcasts (Geoghegan and Klass, 2005). Educators for whom the use of music is important are advised to visit the Creative Commons website (www.creativecommons.org). All Creative Commons Licences are free to access. Who is being mentioned? One of the issues that nurse educator may wish to consider in inadvertent infringement of trademarks. This could include such things as using the instantly recognisable Apple trademark to identify your podcasts or using trademarked logos as avatars in blogs, wiki or virtual realities such as Second Life. If the owner of a trade mark perceives an association between a podcast or posting and its trade mark, and that association is sufficient to cause viewers or listeners to think that there is a link, it might mean that there is trademark infringement. However, Sutter and Gibson (2007) highlight two trademark exceptions: 1. A trade mark is not infringed if the use is not commercial. Even if a podcast is commercial a trade mark will not be infringed where the use is descriptive. For example, Pespi is a cola drink which can sometimes alleviate nausea. 2. It is also possible to use another’s trade mark where it is also your own name. Haigh and Jones (2007) have noted that one of the characteristics of cyber-space is the phenomenon known as disinhibition. Cyber-disinhibition occurs when people are more prepared to share personal information or contentious opinions in cyberspace than they would in the off-line world. It is, in part a function of the invisibility that is accorded by cyber-space, an invisibility that can be enhanced in virtual realities such as Second Life since ones avatar need bear no resemblance to ones off-line persona or appearance. An avatar is a representation of an individual in cyber-space and can be simple designs or pictorial representations (Haigh and Jones, 2007). Suler (2004) identifies two types of disinhibition. Benign disinhibition is typified by enhanced kindness or generosity whereas toxic disinhibition is typified by rude, abusive or angry cyber-behaviour. Nurse educators must be aware of this notion of cyber-space inhibition when setting up blogs, wikis or Second Life virtual seminars. Such strategies can never be left unmoderated and defamatory postings should be removed and inappropriate avatar behaviour condemned immediately. The legal dilemma surrounding defamatory reworks posted in cyber-space centres around the geographical neutral nature of the internet. Such material may conceivably be accessed in numerous different countries with different laws which may favour either the plaintiff or the defendant. In such cases, it will be necessary for a plaintiff or pursuer to work out where they may most advantageously, pursue action (Edwards, 1997). Nurse educators must be aware that advantages to free speech and academic discourse offered by web 2.0 technologies must be balanced against cyber-disinhibition, potential distress or defamation of character. Who is listening? Partly a function of the disinhibition discussed earlier and partly because cyber-communication erodes the space, time, location variables that define the physical world (Waskul, 1996), concepts of confidentiality and privacy can be argued to be more fluid in the on-line world than they are in the off-line world. Most nursing students and nurse educators would be very unlikely to
556
C. Haigh / Nurse Education Today 30 (2010) 553–556
discuss patients or placements in crowded public areas. However cyber-space can be described as simultaneously intimate and communal, leading Waskul (1996) to suggest that the notions of ‘public’ and ‘private’ are no more that metaphors to the cybercommunity. Thus, nurse educators who wish to encourage scholarly debate or create an academic community with their students need to be aware of what students are posting, who might see it and how much offense it may cause. In this latter point ‘offense’ need not necessarily translate into offensive language or opinions but may also include issues such as negatively commenting upon clinical or academic staff or placement experiences or passing comments that, rightly or wrongly, the general public would not expect to hear from a caring professional. Nurse educators who plan to use web 2.0 strategies need to be alert to such issues, many of which can be controlled for by the simple expedient of restricting access to networking sites, unfortunately however the down side to this strategy is that wider debate, external to one specific institution is the prohibited. Equally, this does not address the issue of what students are saying on their personal blogs or websites which can also have potential unpleasant consequences for educationalists and their institutions. In the UK, the Joint Information Systems Committee (JISC) has drawn up a most useful checklist that can act as a guideline for those nurse educators venturing into the web 2.0 environment. The second item on the list asks ‘‘Are staff and students made aware of their rights and responsibilities prior to using web 2.0 tools at the institution?” (JISC, 2008). This is an excellent point since it clarifies that not only is the institution responsible for appropriate use of web 2.0 technologies but that educators and their students share an equal responsibility – a point that that is not often made explicit to students. Given that a particular standard of personal and public behaviour is expected of health care professionals (and, by association, nursing students) by the patient population (Timmins and McCabe, 2005), this point can be argued to cover personal networking spaces and blogs as well as those accessed for the duration of the student nurses education. Recommendations This paper has attempted to raise the profile of some of the legal issues that require consideration when using web 2.0 technologies for teaching purposes. In order to ensure that educators protect themselves and their students from legal pitfalls such as unintended copyright breech, it is suggested that educators give some thought to the following: 1. Find out if the institution has a policy on using web 2.0 and/or a learning technologies team to support the development of web 2.0 tools. 2. Find out if there is a named person within the university who can help with the legalities of web 2.0. 3. Think carefully about all content posted in cyber-space. 4. Be aware of the rights of third parties. 5. It is good practice to identify any podcasts as the voice of an individual or small group within the company, not the ‘‘official” voice of the institution: ‘‘the views and opinions of these speakers may not reflect the views and opinions of the University”.
6. The JISC web 2.0 policy checklist (JISC, 2008) is a good template for evaluation and will help minimise non-compliance with the law.
Conclusion It can be seen that aside from the practical challenges facing nurse educators who are grappling with new technology there are legal implications inherent in any cyber-based activity. Concepts such as copyright which have, traditionally, not been of primary concern to educators in the past are becoming increasing important. The dichotomy between what appears to be ephemeral conversation and the underestimated longevity of cyber-space materials and posting need to be fully explored by those individuals who wish to exploit web 2.0 technologies to their fully potential. References Afori, O.F., 2009. Implied license: an emerging new standard in copyright law. Santa Clara Computer and High Tech Law Journal 25, 275–325. Claerhout, L.A., 2004. Copyright issues in online courses a moment in time. In: Anderson, T., Elloumi, F. (Eds.), Theory and Practice of Online Learning. Athabasca University, Canada. Edwards, L., 1997. Defamation and the internet: name calling in cyberspace. In: Edwards, L., Waelde, C. (Eds.). Law and the Internet Regulating Cyberspace Hart Publishing, Oxford. Forte, P., 2009. IP and Copyright – The Fight against Online Piracy. Law Society Gazette. Available from: (accessed 06.08.09.). Geoghegan, M.W., Klass, D., 2005. Podcast Solutions: The Complete Guide to Podcasting. Apress. Haigh, C., Jones, N., 2005. An overview of the ethics of cyber-space research and the implication for nurse educators. Nurse Education Today 25 (1), 3–8. Haigh, C., Jones, N., 2007. Techno-research and cyber-ethics: research and the internet. In: Long, T., Johnson, M. (Eds.), Research Ethics in the Real World. Churchill Livingstone, Edinburgh. Heng, C., 2008. Website Design, Promotion, Programming and Revenue Making. Available from: (accessed 18.08.09.). Higher Education Funding Council, 2008. Copyright Exceptions and Web 2.0 Overview Paper. Available from: (accessed 13.08.09.). JISC, 2008. Web 2.0 Policy Checklist. Available from: (accessed 18.08.09). Simonson, M., Smaldino, S., Albright, M., Zvacek, S., 2003. Teaching and Learning at a Distance. Foundations of Distance Education, second ed. Pearson Education, Upper Saddle River, NJ. Suler, J., 2004. The online disinhibition effect. Cyberpsychology and Behavior 7 (3), 321–326. Sutter, G., Gibson, J., 2007. Podcasts and the Law. Available from: (accessed 05.08.09.). Timmins, F., McCabe, C., 2005. Nurses’ and midwives’ assertive behaviour in the workplace. Journal of Advanced Nursing 51 (1), 38–45. Tysver, D., 2008. Bitlaw. Copyright Ownership. Available from: (accessed 13.08.09.). UK Copyright Service, 2009. Fact sheet P-08: The Berne Convention. Available from: (accessed 06.08.09.). US Copyright Office, 1998. The Digital Millennium Copyright Act of 1998 US Copyright Office Summary. Available from: (accessed 06.08.09.). Vogele, C., Garlick, M., 2007. Podcasting Legal Guide: Rules for the Revolution. Available from: (accessed 14.08.09.). Waskul, D., 1996. Ethics of Online Research: Considerations for the Study of Computer Mediated Interaction. Available from: (accessed 18.08.09.). World Intellectual Property Organisation, 2004. WIPO Intellectual Property Handbook: Policy, Law and Use. WIPO Publication No.489 Available from:
Contents lists available at ScienceDirect
Nurse Education Today journal homepage: www.elsevier.com/nedt
Legality, the web and nurse educators Carol Haigh * School of Nursing, Manchester Metropolitan University, Manchester M13 OJA, United Kingdom
a r t i c l e
i n f o
Article history: Accepted 14 November 2009
Keywords: Copyright Virtual learning technologies Web 2.0 Nurse education
s u m m a r y Nurse lecturers are becoming more aware of the opportunities that web 2.0 offers and are slowly moving into the world of cyber-teaching. However, few consider the legal ramifications of this new teaching trend and how vulnerable they may be when posting information or teaching materials to the World Wide Web. The purpose of this paper is to explore the legal issues inherent in the use of virtual learning technologies. This paper poses a number of questions that novices in the world of virtual learning technologies may wish to consider. The paper makes some recommendation which may help to ensure that not only can nurse educators fully exploit the opportunities offered by the World Wide Web but they can do so in a legally responsible manner. Ó 2009 Elsevier Ltd. All rights reserved.
Introduction It is difficult to imagine any single development, within the last decade that has impacted upon nurse education to the extent that the surge of digital learning technology has. Podcasting, social networking sites and all of the opportunities offered by the second generation of web design (see Table 1) that allow for information sharing – known as web 2.0 – have expanded the horizons of the nurse lecturer beyond the classroom to the whole of the global education community. Nurse lecturers are becoming more aware of the opportunities that web 2.0 offers and are slowly moving into the world of cyber-teaching. However, few consider the legal ramifications of this new teaching trend and how vulnerable they may be when posting information or teaching materials to the World Wide Web. The purpose of this paper is to explore the legal issues inherent in the use of virtual learning technologies. This paper is not designed to provide legal advice or guidance but is an overview of the issues surrounding the use of cyber-space as a teaching tool. Thus, to equip those nurse lecturers who wish to embrace the possibilities of web 2.0 the paper will pose a number of questions that the novice may wish to consider before they begin to develop cyber-materials. What is copyright? The 1886 Berne Convention was the first international attempt to lay down a common framework and agreement between signatory nations in respect to Intellectual Property rights. The current version of the convention is the Paris Act of 1971 (UK Copyright Service, 2009). The convention is administered by the World Intellectual * Tel.: +44 161 247 5914. E-mail address: [email protected] 0260-6917/$ - see front matter Ó 2009 Elsevier Ltd. All rights reserved. doi:10.1016/j.nedt.2009.11.008
Property Organisation, (WIPO). This is a specialized agency of the United Nations dedicated to developing a balanced and accessible international Intellectual Property (IP) system. This is an important development as the geographically independent nature of cyberspace means that international boundaries become increasing eroded. WIPO has a mandate from its 184 member states to promote IP across the globe and to liaise with other relevant organisations. Member countries include Australia, Canada, The United Kingdom (UK) and the United States of America (USA). In the USA, the Digital Millennium Copyright Act (DMCA) was signed into law by in 1998. This legislation implements two 1996 World Intellectual Property Organisation (WIPO) treaties (US Copyright Office, 1998). In the UK, the law on copyright is scheduled for review in the light of recent issues surrounding illegal on-line file sharing (Forte, 2009). WIPO makes very clear distinction between two terms that are often used synonymously; Intellectual Property and Copyright. They suggest that Intellectual Property refers to broadly to anything that is created by the human mind, but differentiates between industrial property rights which include ‘‘. . ..inventions, industrial designs, trademarks, service marks and commercial names and designations. . ..” (World Intellectual Property Organisation, 2004) Whilst copyright refers to ‘‘. . ..literary, artistic and scientific works belong to the copyright branch of intellectual property. The areas mentioned as performances of performing artists, phonograms and broadcasts are usually called ‘‘related rights” that is, rights related to copyright”.
(World Intellectual Property Organisation, 2004)
554
C. Haigh / Nurse Education Today 30 (2010) 553–556
Table 1 Examples of web 2.0 communities and services. Blog
Folksonomies
Mashup Podcast
RSS
Second Life
Social Social
V-Blog Video sharing
Wiki
A blog (contraction of the word weblog) is a site which allows for an individual to post regular entries of commentary, opinion of event description Folksonomies developed as a result of social software applications such as social bookmarking and photograph annotation. Tagging allows users to collectively classify and find information. Some websites include tag clouds as a way to visualize tags in a folksonomy. For examples see http:// en.wikipedia.org/wiki/Tag_cloud A mashup is a web application which allows for data from more than one source to be edited to appear as a whole A portmanteau word generated from i-pod and broadcast, a podcast is a presentation or a programme which is available for download as a digital file. They can be audio or video files. The advantage of podcasts from a student’s viewpoint is that they can be returned to many times RSS (or Really Simple Syndication) allows for the content of one site, one which is regularly updated, to be accessed by another in a different context. For example – news programmes will allow users to sign up for an RSS feed of their headlines or breaking news. The term ‘web feed’ is beginning to replace RSS. Clicking on the RSS icon (see below) initiates the user subscription
Second Life is the best known of the virtual reality worlds that exist. Within Second Life users can hold meeting, give seminars and practice clinical and communication skills within a safe virtual environment. Individuals are represented by an avatar which carries their chosen identity in that world networking networking sites allow for the creation of on-line communities of individuals with common interests. There are many such sites, for example Bebo, My space, Facebook. Different sites appeal to different age groups and different countries. Sites can be open for all to view or restricted to those approved by the site owner. Although Twitter is technically a social networking site it differs in that its content is limited. Users have 140 characters in which to answer the question ‘what are you doing’? Some people such as Barak Obama and Alistair Campbell use Twitter in clever and intelligent ways to highlight issues or direct readers to new blog entries A V-Blog is a blog comprised of video, rather than text, postings Video sharing refers to websites where individuals can post their video clips. Some sites charge, but the majority of them offer are free to use. Many services have options for private sharing or open publication options. Often feature videos which are example of mashups A wiki is used to create collaborative websites, to power community websites, and facilitate note taking. Popular with nurse educationalist wikis can be used to facilitate discussion and sharing of information on health related topics
Thus, it can be seen that the majority of the material that a nurse lecture is likely to post onto the World Wide Web will fall within the copyright branch of Intellectual Property.
Who owns my material? Most WIPO signatory countries take the stance that, if you develop material in the course of your employment, copyright on that work is owned by your employer. Generally the law takes the viewpoint ‘‘that in a work made for hire situation, the ‘‘author” of the work is no longer the individual who created the work. Instead, the ‘‘author” is considered to be the entity which hired the actual creators of the work (such as a corporation for whom the
author works as an employee)” (Tysver, 2008). It has been noted that this may have potential problem in the academic environment where working hours are fluid and flexible, materials may be created at home on personal, i.e. non-employer supplied, computers and outside of ‘traditional working hours (Claerhout, 2004). Nonetheless, universities generally retain copyright to academic and educational materials. If, as often happens, an educator moves to another university, copyright on their educational material, hard copy or cyber-space based, remains with their previous employers. Many universities operate a system of goodwill, in which the educationalist who originated the work retains the right to use it, for teaching and in academic publications, providing the initial university is acknowledged (Claerhout, 2004). Simonson et al. (2003) describe what they refer to as a hybrid model of ownership in which ownership of educational materials is with the educator but ownership of the course or programme of study is held by the university. In practice this means that any lecturer moving to a new university can take their teaching materials with them whilst their previous employers can continue to run the original programme, including using the teaching resources as designed. This is often the case; however it is sensible to check before taking up a new post. Educators who post videos or V-Blogs on sites such as YouTube or Metacafe need to consider copyright issues, especially if such materials will also be used on web sites or in classrooms. Basically, if the material posted originates with the educator then copyright remains theirs. It is also becoming increasingly common for nurse educators and students to form groups on social networking sites. Whilst, generally, copyright to any material on such sites belongs to the originator it is worth knowing that some sites reserve the right to use your name, likeness and image for any purpose, including commercial or advertising. Such sites usually have an option on their ‘settings’ page which allows the page owner to block this. However, nurse educators are strongly advised to read a site’s terms of use before sanctioning any group related social networking activity (see, for example http://www.facebook.com/terms.php or http://www.bebo.com/TermsOfUse2.jsp).
Who owns third party material? Digital copyright law across the globe is in a constant state of flux as technologies continue to develop apace. In the UK copyright law states ‘‘Copyright is infringed when a third party. . .. all or a substantial part of an in copyright work owned by a third party”. The obvious difficulty in this statement is the use of the word ‘substantial’ with no clear indication of what actually constitutes a substantial amount since a key sentence, table, figure or paragraph could be argued to be substantial as it is crucial to the work in question (Higher Education Funding Council, 2008). From an educational stance, this is an important point when considering the third party material that is contributed to educational blogs and wikis. These techniques, which are useful to educationalists as methods of creating debate and discourse in a cyberspace student community, depend upon comments being posted by third parties, either students or other lecturers. In these situations is it not inappropriate to suggest that such posts will be alluded to without formal referencing which at best may attract a charge of plagiarism and at worst be an infringement of copyright. Afori (2009) postulates that the concept of the ‘‘implied licence” goes some way to addressing the copyright problems inherent in such digital media. An implied licence exists when one party (the licensee) is permitted to do something that would normally require the express permission of another party (the licensor). Implied licenses may arise when the actions by the licensor lead the licensee to believe that it they have the necessary permission.
C. Haigh / Nurse Education Today 30 (2010) 553–556
For example, if other students copy an earlier blog post into their response, the originator of that post is deemed to have given implied licence for them so to do. In the UK, guidelines suggest that that a simple test of implied licence is to pose the question ‘‘If I were the rights owner, would I be likely to object if my materials were being copied in this way?” (Higher Education Funding Council, 2008). If the answer is in any way unclear the educator is advised that implied licence cannot be assumed and obtaining copying permission is recommended. It is clear that the concept of the implied licence must be viewed with caution. There is a common misconception that the internet is copyright free, although this is far from the case (Haigh and Jones, 2005). Thus, the development of web pages, for example, does not imply copying consent. This has issues for those nurse educators who fear that their students are constructing essays around material download from web pages. Broadcasting sites such as YouTube can be very positive in terms of accessing educationally useful materials to supplement teaching sessions or act as additional information for students. However, if the video in question was created by someone else then educators must beware of possible copyright infringement and seek usage permission from the owner or, at the very least, ensure that the owner of the work is credited before suggesting it to their students. When owners of videos publish them they are often given the option to enable or disable the EMBED code for their videos. The embed code is the HTML code that is displayed at the side of a video; this allows third parties to add the video to their web pages. Heng (2008) notes that in theory, enabling the EMBED code for others to use could imply permission for third parties to use the video in their own web pages. Another challenging area surrounding the use of third party material is the recording of conversations or debates for podcasting purposes. This, more than any other issue, highlights the effect that technology has had upon education. In the past the input from external contributor was ephemeral and fleeting, once delivered to a classroom of students it was gone. However, a podcast is a permanent entity, often accessible to a wider community than has previously been the norm. It has be argued that the most engaging podcasts are those which are formatted as a conversation or interview between two or more individuals – this may be a formal interview setting or may be a recording of a lecture delivered by two or more lecturers. In these instances each individual holds the copyright on their verbatim responses. In many interview scenarios, there may be an implied license to use the materials, but it safest to get written consent or record the interviewee’s verbal consent before the interview is incorporated into a podcast (Vogele and Garlick, 2007). A further area requiring consideration is the use of music in podcasting. This can be a particular problem if students are encouraged to produce their own podcasts in educational settings. If such material is being hosted on the university servers then it is possible that the university may bear vicarious liability for any breech of copyright, similarly if a lecturer breeches copyright by attaching music to a podcast. Some people believe that some music, typically classical, is free to use since the composer has died. This is a false premise since, unless one has access to an original Mozart recording (highly unlikely) then copyright rests with the performer of the piece and so copyright infringement is probable. The most effective way for podcasting educators to protect themselves, their students and their university is to use material that is protected by a Creative Commons Licence. Under a Creative Commons Licence songs can be freely used providing the licence guidelines are adhered to. Most songs are licensed under the Attribution-non-commercial-noDerivs 2.0 licence which means that others are free to copy and distribute a work so long as the original creator is given credit, the work is not being used for commercial purposes and the work is not changed or
555
built upon. Additionally, the Creative Commons Sampling License allows the use of excerpts of a work but not the entire piece and is useful for podcasts (Geoghegan and Klass, 2005). Educators for whom the use of music is important are advised to visit the Creative Commons website (www.creativecommons.org). All Creative Commons Licences are free to access. Who is being mentioned? One of the issues that nurse educator may wish to consider in inadvertent infringement of trademarks. This could include such things as using the instantly recognisable Apple trademark to identify your podcasts or using trademarked logos as avatars in blogs, wiki or virtual realities such as Second Life. If the owner of a trade mark perceives an association between a podcast or posting and its trade mark, and that association is sufficient to cause viewers or listeners to think that there is a link, it might mean that there is trademark infringement. However, Sutter and Gibson (2007) highlight two trademark exceptions: 1. A trade mark is not infringed if the use is not commercial. Even if a podcast is commercial a trade mark will not be infringed where the use is descriptive. For example, Pespi is a cola drink which can sometimes alleviate nausea. 2. It is also possible to use another’s trade mark where it is also your own name. Haigh and Jones (2007) have noted that one of the characteristics of cyber-space is the phenomenon known as disinhibition. Cyber-disinhibition occurs when people are more prepared to share personal information or contentious opinions in cyberspace than they would in the off-line world. It is, in part a function of the invisibility that is accorded by cyber-space, an invisibility that can be enhanced in virtual realities such as Second Life since ones avatar need bear no resemblance to ones off-line persona or appearance. An avatar is a representation of an individual in cyber-space and can be simple designs or pictorial representations (Haigh and Jones, 2007). Suler (2004) identifies two types of disinhibition. Benign disinhibition is typified by enhanced kindness or generosity whereas toxic disinhibition is typified by rude, abusive or angry cyber-behaviour. Nurse educators must be aware of this notion of cyber-space inhibition when setting up blogs, wikis or Second Life virtual seminars. Such strategies can never be left unmoderated and defamatory postings should be removed and inappropriate avatar behaviour condemned immediately. The legal dilemma surrounding defamatory reworks posted in cyber-space centres around the geographical neutral nature of the internet. Such material may conceivably be accessed in numerous different countries with different laws which may favour either the plaintiff or the defendant. In such cases, it will be necessary for a plaintiff or pursuer to work out where they may most advantageously, pursue action (Edwards, 1997). Nurse educators must be aware that advantages to free speech and academic discourse offered by web 2.0 technologies must be balanced against cyber-disinhibition, potential distress or defamation of character. Who is listening? Partly a function of the disinhibition discussed earlier and partly because cyber-communication erodes the space, time, location variables that define the physical world (Waskul, 1996), concepts of confidentiality and privacy can be argued to be more fluid in the on-line world than they are in the off-line world. Most nursing students and nurse educators would be very unlikely to
556
C. Haigh / Nurse Education Today 30 (2010) 553–556
discuss patients or placements in crowded public areas. However cyber-space can be described as simultaneously intimate and communal, leading Waskul (1996) to suggest that the notions of ‘public’ and ‘private’ are no more that metaphors to the cybercommunity. Thus, nurse educators who wish to encourage scholarly debate or create an academic community with their students need to be aware of what students are posting, who might see it and how much offense it may cause. In this latter point ‘offense’ need not necessarily translate into offensive language or opinions but may also include issues such as negatively commenting upon clinical or academic staff or placement experiences or passing comments that, rightly or wrongly, the general public would not expect to hear from a caring professional. Nurse educators who plan to use web 2.0 strategies need to be alert to such issues, many of which can be controlled for by the simple expedient of restricting access to networking sites, unfortunately however the down side to this strategy is that wider debate, external to one specific institution is the prohibited. Equally, this does not address the issue of what students are saying on their personal blogs or websites which can also have potential unpleasant consequences for educationalists and their institutions. In the UK, the Joint Information Systems Committee (JISC) has drawn up a most useful checklist that can act as a guideline for those nurse educators venturing into the web 2.0 environment. The second item on the list asks ‘‘Are staff and students made aware of their rights and responsibilities prior to using web 2.0 tools at the institution?” (JISC, 2008). This is an excellent point since it clarifies that not only is the institution responsible for appropriate use of web 2.0 technologies but that educators and their students share an equal responsibility – a point that that is not often made explicit to students. Given that a particular standard of personal and public behaviour is expected of health care professionals (and, by association, nursing students) by the patient population (Timmins and McCabe, 2005), this point can be argued to cover personal networking spaces and blogs as well as those accessed for the duration of the student nurses education. Recommendations This paper has attempted to raise the profile of some of the legal issues that require consideration when using web 2.0 technologies for teaching purposes. In order to ensure that educators protect themselves and their students from legal pitfalls such as unintended copyright breech, it is suggested that educators give some thought to the following: 1. Find out if the institution has a policy on using web 2.0 and/or a learning technologies team to support the development of web 2.0 tools. 2. Find out if there is a named person within the university who can help with the legalities of web 2.0. 3. Think carefully about all content posted in cyber-space. 4. Be aware of the rights of third parties. 5. It is good practice to identify any podcasts as the voice of an individual or small group within the company, not the ‘‘official” voice of the institution: ‘‘the views and opinions of these speakers may not reflect the views and opinions of the University”.
6. The JISC web 2.0 policy checklist (JISC, 2008) is a good template for evaluation and will help minimise non-compliance with the law.
Conclusion It can be seen that aside from the practical challenges facing nurse educators who are grappling with new technology there are legal implications inherent in any cyber-based activity. Concepts such as copyright which have, traditionally, not been of primary concern to educators in the past are becoming increasing important. The dichotomy between what appears to be ephemeral conversation and the underestimated longevity of cyber-space materials and posting need to be fully explored by those individuals who wish to exploit web 2.0 technologies to their fully potential. References Afori, O.F., 2009. Implied license: an emerging new standard in copyright law. Santa Clara Computer and High Tech Law Journal 25, 275–325. Claerhout, L.A., 2004. Copyright issues in online courses a moment in time. In: Anderson, T., Elloumi, F. (Eds.), Theory and Practice of Online Learning. Athabasca University, Canada. Edwards, L., 1997. Defamation and the internet: name calling in cyberspace. In: Edwards, L., Waelde, C. (Eds.). Law and the Internet Regulating Cyberspace Hart Publishing, Oxford. Forte, P., 2009. IP and Copyright – The Fight against Online Piracy. Law Society Gazette. Available from: