Legislation

Introduction
Rationale

The highest form of promoting open and distance learning is through instruments that legitimise the promulgation, acceleration and facilitation as well as the removal of barriers and prohibitive structures to the establishment, practice or improvement of distance education globally and locally. Existing legislation ensures the commitment of international bodies and governments to formulate ODL policies and programmes accordingly.

Legislation is the law or set of laws enacted by government or an official body. At the international level, it includes treaties and agreements ratified by governments. At the national level, it could take the form of Laws, Statutes, Decrees, Royal Charter, Acts, Edicts, Proclamations, Pronouncements, Orders, Ordinances and Regulations endorsed by legislature.

There are a limited number of international laws and agreements with direct bearing on distance education. However, with the advent of globalization and the rapid development of information and communication technology (ICT), which is propelling distance education growth internationally, governments are now recognising the need for international regulations on quality assurance, foreign education providers, consumer protection, copyrights and intellectual property rights.

At the regional level, the European Union has managed to make provisions for the development of distance education under one of its Treaties. Although other regional organizations are taking up ODL in their agenda and developing partnerships as well as collaborative ODL programmes in Asia-Pacific countries, no binding regional agreements on distance education exist so far in the Asia-Pacific region.

Legislation on distance education is aimed most often at the national level and at state-controlled ODL institutions. In fact, many countries in Asia-Pacific have passed a number of legislations directly affecting distance education. The most common legal provisions have facilitated the systematisation of distance education in the country; the establishment of ODL structures, institutions or regulatory bodies; the recognition of distance education as a form equal to conventional education; the use of innovative technologies and delivery systems in distance education; and the release of government funding for ODL initiatives. However, regulatory provisions for standardizing the delivery, curriculum, instruction and evaluation of ODL programmes are often lacking.


Objectives

This section has been set up to:

• Present the existing ODL legislation at the international and national levels

• Discuss different types of legislation and actual examples of legislation with direct bearing on ODL programmes

• Present global issues with implications on ODL and its legislation

International and Regional Legislation

Few global and regional organizations have the power to compel governments into action by way of legal instruments. Among these are UN agencies, regional alliances and blocs of economic cooperation. It is in the context of these organizations that governments collectively formulate binding agreements or enabling instruments. Examples of international or regional legislation with ODL implications are discussed below. Global issues with implications on ODL are also presented in another sub-section.

Examples of international/regional legislation

So far, the major international laws and enabling instruments with direct bearing on distance education include the following:

General Agreement on Trade in Services (GATS)
International Copyright Law and Intellectual Property Rights
Multi-lateral agreements and declarations with ODL components   

·  GATS. The General Agreement on Trade Services is a new agreement, not yet complete, under the World Trade Organization (WTO) to which most countries belong. The agreement consists of a set of rules that limit government or institutional intervention in global trade of services, possibly including transnational education services. It aims to remove hindrances to market entry and provide equal treatment of foreign service providers.

WTO members will be required to make commitments along four modes of supply which include cross border (e.g. the use of new information technologies for distance learning – cable and satellite transmissions, audio and video conferencing, PC software, CD-ROMS, and the Internet); consumption abroad (e.g. a student who travels abroad to study); commercial presence (e.g. establishment of facilities abroad by education providers); and presence of natural persons (e.g. a professor, researcher, teacher etc. traveling to another country on a temporary basis to provide an educational service).

Education services rank among the least committed of all sectors subject to GATS coverage. Of the first countries to submit proposals setting out their negotiating objectives for education services in the GATS round of talks, three are from Asia-Pacific Region (Australia, Japan and New Zealand) and one from North America (USA).

It has been argued that GATS is unlikely to be a driving force or even a major consideration in the changes that are already happening in cross-border education today (Trade, Education and the GATS). This is because the trade policy framework may not offer the most appropriate environment in which to tackle the measures likely to constrain the further internationalisation of education services.

·  International copyright law and intellectual property rights. Copyright is the exclusive right to copy a creative work or let someone else do so. It is only one of the three branches covered by intellectual property rights. Trademarks and patents are the two other branches.

Distance education gives rise to complex copyright issues related to the questions of ownership of newly created work and fair use of existing materials. In general, these issues are handled by the laws of every country. And most countries are guided by the stipulations of international agreements such as:

The Berne Convention, first established in 1886, is by far the oldest of the international copyright conventions. It is administered by a specialized UN agency, the World Intellectual Property Organisation (WIPO). It provided protection for the nationals of the developed countries which were members of the Union. Most of its provisions were absorbed by latter international agreements such as the Universal Copyright Convention and recently, the TRIPS Agreement under WTO.

The Universal Copyright Convention, facilitated by UNESCO, was signed in Geneva in 1952 and included the concerns of developing countries as well as the United States, which was not one of the original signatories of the Berne Convention.

The sanctions provided by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement 1995 under WTO is potentially much more effective, as they relate to trade. If a country which is a signatory to the TRIPS Agreement does not comply with the provisions of the Agreement, it can be reported to a WTO panel. In the event of an adverse finding by that panel, retaliatory measures in the form of trade sanctions may be adopted against that country.

·  Multi-lateral agreements and declarations with ODL components

The World Declaration on Higher Education for the Twenty-first Century: Vision and Action was the statement adopted by the World Conference on Higher Education under UNESCO's management in 1998. Of direct relevance to distance education are these two articles: Article 8 calls for more diversified systems of higher education including supported learning at a distance. Article 12 encourages higher education institutions to create new learning environments, ranging from distance education facilities to complete virtual systems, that could bridge distances, develop high-quality education and at the same time respect social and cultural identities.

The 1988 Memorandum of Understanding on co-operation in distance education through the establishment of the Commonwealth of Learning is an example of a powerful multi-lateral agreement among Commonwealth countries. The international organization that resulted form this agreement has its headquarters in Canada, protected by the Privileges and Immunities (International Organizations) Act of the Laws of Canada, and has a legal personality under those Laws.

Among the regional communities of the world, it is the European bloc that has managed to endorse distance education through one of its international treaties. The treaty, in this case, is an important one in that it introduced the concept of the European nations as one union.

Known as the Maastricht Treaty (1992), it stipulates among other things the development of quality education through co-operation. One of the six actions in the field of education according to the treaty should aim at encouraging the development of distance education.

In the Asia-Pacific region, no similar treaties or agreements have specifically incorporated ODL, but regional-level government organizations are actively putting distance education in their agenda. For example, the APEC Economic Leaders' Declaration in Los Cabos, Mexico on 27 October 2002, specifically welcomed the expansion of cyber education and called for increased use of distance learning.

The Association of South-East Asian Nations (ASEAN) has launched the e-ASEAN Initiative with the idea that ICT can make distance education and training more effective. Much earlier, the South-East Asian Ministers of Education Organization (SEAMEO) founded the SEAMEO Regional Open Learning Center (SEAMOLEC) in 1997 to assist its member countries in identifying educational problems and finding alternative solutions for sustainable human resources development through open and distance learning.

The South Asian Association for Regional Cooperation (SAARC) has set up the SAARC Consortium of Open and Distance Learning (SACODiL) based on its decision during the Tenth SAARC Summit in Colombo in January 1999.

National Legislation

In the Asia-Pacific region, national laws on ODL are often very specific to the creation of structures needed to implement ODL programmes. To pass this type of legislation is a big step towards the promotion of ODL as demonstrated by Asian open universities, many of which were set up by legal mandate. The concept of open and flexible learning embodied by these universities is in itself revolutionary to most countries, where education is often perceived as a linear process confined within the walls of the classroom under the direct control of the teacher. The establishment of open universities backed by legislation has also challenged the perception of ODL as second rate to traditional face-to-face education.

A major gap in the kinds of ODL legislation found in the region seems to be in the area of regulatory measures for quality assurance of ODL programmes. Some countries like China (Hong Kong in particular), India (though the IGNOU Distance Education Council), the Philippines (through the Commission on Higher Education) and Malaysia (through its National Accreditation Board) have set up regulatory bodies that oversee ODL institutions, but the extent to which they can effectively control the quality of ODL programmes remains to be seen. In all certainty, online universities operating from abroad are beyond the jurisdiction of national laws and regulations.

The development of ODL legislation in each country is linked with the development of education and education restructuring or reform. The attraction of governments to the promotion of distance education closely ties up with meeting its education goals such as equal access to opportunity, battling illiteracy, flexible learning, economic growth, quality, cost-effectiveness and rapid expansion of higher education. In many developing countries, the driving force for establishing open universities was their potential for mass education. In the contemporary scenario, the demand for ODL is also growing fast because of the compulsion for lifeliong learning.

It is not incidental that countries who have managed to pass or enact ODL-related legislation are now relatively ahead in the field of distance education, particularly at the higher education level.

Discussed below are examples of legislation classified according to their contribution to the promotion of ODL at the national level. A list of ODL legislation by country is also available.

Types of national legislation

The different types of legislative frameworks for ODL may provide the basis for:

• Systematising distance education in the country: As an example, the “Provisional Regulations of Correspondence Education of Conventional Institutions” in China promoted correspondence education by formalising, standardising, and systematising it in China in 1986. Many years later (1999), the Ministry of Education promulgated the “Comments on Developing Advanced Distance Learning in China,” which contained the guidelines, aims and tasks of distance learning in China. More recently, China has listed distance learning as an important part of its education development blueprint for the 10th Five-Year Plan period (2001-2005).

• Defining the scope of distance education in the country in terms of technology and delivery systems, level of education and target groups: For example, the University of the Air Foundation Law in 1981 specified broadcasting as a means for every Japanese citizen in every corner of the nation to gain access to higher education. Then adoption of Law No. 17, the Lifelong Learning Promotion Act in July 1990 (Japanese universities and lifelong education), effectively warned the universities to open up more programmes for people not previously considered part of the university system or a new breed of students – non-traditional learners.

• Setting up the structures of ODL institutions: The People's Open University in Pakistan, which was renamed as Allama Iqbal Open University, was established as an Act of Parliament (National Assembly Act No.XXXIX 1974). Similarly, the Sukothai Thammathirat Open University in Thailand, the Open University of Hong Kong, the Payame Noor University in Iran, IGNOU in India and other open universities were instituted through legal acts of state. Often, these acts define the organizational structure of these institutions as well.

The existence of a legal framework was critical because it also gave the basis for appropriating funds or financing mechanisms to such an initiative. More importantly, the legal framework gives equal footing to the degrees conferred by distance education as those earned through conventional learning in higher education institutions.

• Expanding the authority of existing institutions to offer distance education: In Korea, the amendment of the Higher Education Law permitted conventional universities to set up degree-granting virtual universities that offer cyber education or ICT-based learning.

• Setting up ODL councils or regulatory bodies and defining their functions: For example, the IGNOU Distance Education Council (DEC) in India derives its authority as the regulatory body for distance education in the whole country by virtue of the IGNOU Act 1985, which made provisions for the formation of DEC. In 1985 the Government of India empowered IGNOU with the responsibility of determining and maintaining standards in distance education in the country. IGNOU is also provided funding by the Ministry of Human Resource Development for giving grants to different ODL institutions.

• Regulating transnational education. Malaysia, Hong Kong and the Philippines have passed laws subjecting foreign providers of education to some kind of registration procedure and quality control to ensure that local learners are not short-changed. However, it is difficult to subject providers to these regulations when the providers do not have a physical presence in the receiving country, as the case may be with programmes offered entirely from the Internet.

References
Global issues in ODL

Globalisation and internationalisation

:: Distance education in developing countries: Globalisation and new challenges (1997)
Written by V.S. Prasad, this conference paper explores the opportunities for educational development and the new challenges faced by distance education institutions in developing countries in general, and India in particular, in the context of globalisation. The desirable response to globalisation of distance education is discussed at the end.

:: Global policy
This World Bank article poses six questions that agencies need to address in the light of internationalization: collaboration, accreditation and certification, cross-cultural issues, jurisdictional issues, international agencies and funding, and innovation issues.

:: Global trends in distance open learning: Challenges before the developing world (1999)
A lecture by Prof. P.R. Ramanujam of IGNOU delivered at UNESCO-IICBA, Addis Ababa, looks at the ODL trends, concerns, technology and the challenges of globalization to distance education in developing countries.

Quality Assurance

:: Quality assurance implications of new forms of higher education.
Part 1: A Typology (2001)
Published by the European Network for Quality Assurance (ENQA) in Higher Education, the report categorises the new forms of higher education, such as distance learning and cross-border education, and their implications to current approaches to internal and external quality assurance.

Digital Divide

:: Distance Education: Is it widening the digital divide?
Written in the USA, this article discusses how distance education could potentially alienate others (even those in the developed world) on the basis of access to technology and other factors (age, disabilities, incarceration and socio-economic status). It includes a summary of the content of other major resources to understanding distance education and the digital divide.