Defining the legal contours of academic freedom of educators in their creation and utilisation of online tools and technologies in higher e-learning

This thesis examines the concept of “academic freedom” of educators and its legal application in tertiary education, particularly in higher e-learning. The research initially showed that the theories of academic freedom of educators were rooted in the theory of the university that found modern articulation in the Germanic concept of “Freiheit der Wissenschaft” in the 1800s. This was based on earlier notions that educators were the university, when they wielded the power to dictate the content and administration of learning. The research demonstrates that this concept which was carried over into the 20th century, provided the seeds by which the individual academic freedoms of educators to teach, research, disseminate their scholarly work and engage in other legitimate activities, can be controlled, curtailed and even repressed by states and institutions. The thesis examines and exposes the legal ontological flaw of theories of academic freedom of educators that are dependent on the autonomy of universities. A different holistic framework based on the human rights of educators is examined in the form of the 1997 UNESCO/ILO Recommendation Concerning the Status of Higher Education Teaching Personnel (1997 Recommendation). The thesis traces and analyses the underpinning legal principles, as well as the history and status of the 1997 Recommendation. It recognises that the 1997 Recommendation provides a basic legal framework that will protect the rights and freedoms of educators in higher education that can withstand the vagaries of technology, resist institutional encroachment and challenge state acts that violate educators’ freedoms. The 1997 Recommendation merely contains general principles on higher education, and the subsequent documents produced relative to it, did not elucidate on the academic freedoms of educators in higher e-learning. This is its major shortcoming, considering that e-learning is projected as a major means of solving logistical and legal concerns regarding access to education, which is considered a human right. Educators occupy a central place in this scheme. While the historic 100 million mark of tertiary students was reached in this century, there is a projected shortage of educators within the next decade. The status of educators and their academic freedoms as the research shows are far from certain. The thesis aims to address this lacuna. It is a multidisciplinary project that straddles three disciplines: law, technology and education. It uses technological and educational examples, case studies and legal controversies from several jurisdictions that include the United States, United Kingdom, Australia, Philippines, and to some extent Canada, in expounding the Recommendation’s principles and extending and applying them to educators in higher e-learning. The 1997 Recommendation was gravely deficient in another important area: it did not provide any standard for the protection of the intellectual property rights of educators over their creations. The thesis considers this issue in the context of e-learning and advocates for the validation of educators’ ownership of their digital works, by using a human rights perspective on intellectual property rights. This perspective is in accord with the general spirit of the 1997 Recommendation. Armed with this approach, the thesis critically scrutinises several institutional policies and practices in the jurisdictions selected for the study, and found that most of them violate the material and moral rights of educators as human beings over their creations. In light of this, the thesis advocates for the adoption of a standard, called the “educator exception” as a viable legal mechanism for protecting the rights of educators over their works, even if they were produced in the course of their employment. The thesis also examines the legal implications of educators’ utilisation of web tools like metadata and hyperlinks in their e-learning activities and creations. The thesis demonstrates how the creation and utilisation of these online tools can support, extend, and even safeguard the academic freedoms of educators as provided by the 1997 Recommendation. It also offers some findings gleaned from the research that contributes to the protection of educators in higher e-learning. The 1997 Recommendation was emphatic in its conviction that the standards it sets are applicable to all educators in higher education regardless of the political and societal environment they are in, for they grapple with and experience similar conditions. The writer trusts that the thesis contributes to a legal and practical understanding of the 1997 Recommendation’s principles, elucidates on its shortcomings with the aim of remedying them, creates awareness and debate over the plight and status of educators engaged in higher e-learning no matter where they are situated, and contributes to the pursuit of truth which is the essence of academic freedom.

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