Editorial

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Most of us—scholars and researchers across the world—found ourselves in uncharted territories when, in 2020, teaching activities were forced to move online due to the outbreak of the COVID-19 Pandemic. Information technologies allowed the continuity of learning while our physical infrastructures were shut down. Nevertheless, for many among us, this transition represented a challenge, making us experience the complex nature of the digital classroom. Amid the uncertainties and problems that schools, universities, teachers, and students had to face lie legal questions, from fundamental rights queries to governance of educational infrastructures and contractual implications, both at national and supranational levels.

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Remote education is not a new phenomenon. In some institutions, online and blended activities long preceded the pandemic emergency. The legal scholarship already inquired into aspects of providing education at distance. Attention had mostly been paid to questions of intellectual property of learning materials and tools, [1] lecture recording policies, [2] students’ authentication aids, [3] security, [4] surveillance, [5] comparative issues in the use of computer-assisted tools in legal education, [6] and labour law implications of online teaching. [7]

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However, the volume, variety, and velocity of the digital transition in education imposed by the COVID-19 Pandemic exacerbated these issues and raised a spectrum of new legal problems. [8] The jurisprudence specializing in digital education demonstrate this momentum: new light has recently been shed on, among others, the digital divide in accessing education, [9] the lawful use of learning materials online, [10] the dispossession of educators’ work in favour of their employers and platforms, [11] privacy and human rights issues raised by EdTech monitoring tools. [12]

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What we observe is an educational sector that is becoming increasingly aware of the potential of digital technologies but that was only recently forced to grapple with the full spectrum of the legal questions arising from them. The latter included, in particular, the impact caused by the reliance on third-party service providers—traditionally external to the “educational circle”—and their infrastructural power.

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Due to the pandemic-induced emergency, educational institutions mostly relied on platforms, social media, and videoconferencing tools to ensure the continuity of learning. The initial few legal warnings stemming from the scholarship turned into a real risk for schools’ and universities’ autonomy and the fundamental rights of teachers and students. In preliminary studies we conducted over the nest of terms and conditions of platforms used during the pandemic, the problematic aspects arising from opaque operations carried out on content and data exceeded our informed expectations as legal researchers in the field.  [13]

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We, therefore, felt the need for a more comprehensive effort to study the phenomenon of digital education from a legal perspective, dissecting its potential and risks for individuals and groups. Our research endeavour started while we witnessed education gradually returning to presential mode. This change did not mitigate the utility of our research questions, as most of the digital tools introduced during the pandemic remain, and with them, the legal issues they raise. The premise of our legal inquiries lies in the awareness that schools and universities can rely on a growing range of technologies to innovate their pedagogical strategies. However, this evolution cannot occur at the expense of fundamental rights within the educational ecosystems.

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This JIPITEC Special Issue on “The Law and the Digital Classroom” is our choral contribution to the research on old legal problems and newly emerging issues threatening the transition into the post-pandemic digital classroom. We think that building such an environment requires a close analysis of the fundamental right to access online education, the protection of students' data, the promotion of teachers' creativity and the safeguards of their work conditions, the rise of dominant economic actors, and the new infrastructural shapes of the ‘platformised’ learning environment. Our aim is twofold: to cultivate legal awareness and policy literacy across society and, in particular, within educational environments, and help weave the full legal picture of the digital classroom connecting the dots between different legal expertise and critically engaging in ‘legal protection by design’ solutions.

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Part I focuses mostly on the student's perspective, addressing the question of the protection of fundamental rights in the post-pandemic environment of digital education.

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Celeste and De Gregorio open the discussion with a critical reflection on the existence of the right to digital education. Although not expressly recognized as such, the authors argue that it can be retrieved from the constitutional obligation to provide access to education. Their paper “Towards a right to digital education? Constitutional challenges of Edtech” is a lucid investigation of how such a right shall be implemented in practice, taking into account the datafication and privatization of education brought by the use of digital tools provided and managed by commercial actors.

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Wong, Racine, Henderson, and Ball explore another type of power imbalance: the one experienced by students before their universities in relation to the collection and use of the personal data generated in the digital classroom. Their paper investigates the question of conceiving “Online learning as a commons: Supporting students’ data protection preferences through a collaborative digital environment”. The results of their empirical research suggest that the commons model, centred on subjects’ data protection preferences, can increase students’ agency over their data, such as those contained in tutorial recordings.

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Giannopoulou, Ducato, Angiolini, and Schneider conclude this Part by focusing on the data protection challenges raised by one specific tool increasingly used during the pandemic: e-proctoring. Forced to organize exams at distance, a few universities decided to ensure the validity and integrity of exams via monitoring tools for online invigilation. The use of such software, however, give rise to several concerns in terms of accuracy, proportionality, discrimination, and intrusiveness. Their paper "From data subjects to data suspects: challenging e-proctoring systems as a university practice" thoroughly discusses how courts and data protection authorities have responded to such issues in the past two years, highlighting both the opportunities and pitfalls of the data protection regime in this area.

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Part II turns to a perspective closer to the teachers, shedding light on the legal implications of the selection and use of copyrighted materials in the digital classroom and on recent developments in teaching practices and open digital infrastructures.

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Trapova kicks off this focus by illustrating the EU copyright legal framework applicable to the access and use of third parties’ materials for educational purposes. In her article “The exceptional mismatch of copyright teaching exceptions in the post-pandemic university: Insights from Germany, Bulgaria, and Ireland”, the author explains the exegesis of a new digital teaching exception in the EU, highlighting its pursued objective of modernizing the law and demonstrating its failed attempt to enhance the harmonization and legal certainty regarding who, what, and how much can we benefit from a copyright teaching exception in Europe.

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Priora and Carloni provide another European perspective, this time looking at the specific phenomenon of the wide spreading of Open Educational Resources (OERs). The topic, extensively analyzed in the North American legal scholarship, invites a timely European focus due to the evolving EU copyright legal regulation and the emerging policy goal to promote innovative digital teaching practices. Their article, entitled “Open Educational Resources through the European lens: Pedagogical opportunities and copyright constraints”, is an interdisciplinary attempt to dissect both the pedagogical potential and enduring copyright constraints vis-à-vis OERs.

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Concluding the Special Issue, we have two case studies. Mezei, in his “Digital higher education and copyright law in the age of pandemic: The Hungarian experience”, presents an empirical study of the Hungarian higher education scenario during the outbreak of the COVID-19 Pandemic between 2020 and 2022. This study aims to fill the gap of adequate observation of the ongoing teaching and learning practices and the impact of the pandemic experience on the awareness, perception, and coping mechanisms with regard to national copyright rules.

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Caso and Pievatolo, in “A liberal infrastructure in a neoliberal world: The Italian case of GARR”, look at the development of ad hoc digital infrastructures serving the purpose of an open and flourishing educational sector. Critically investigating the long arm of the intellectual property legal culture, the authors present the Consortium ‘GARR’ (Gestione Ampliamento Rete Ricerca, Research Network Expansion Management) as an example of alternative public infrastructure that, de facto, facilitates the sharing and exchange of knowledge across Italian universities. This bottom-up experience serves as a meaningful insight into the diverse and pluralistic nature that the post-pandemic digital classroom will need to build and preserve.

* Rossana Ducato is Senior Lecturer in IT Law and Regulation, School of Law, University of Aberdeen, UK (rossana.ducato@abdn.ac.uk). Giulia Priora is Assistant Professor at NOVA School of Law Lisbon (Faculdade de Direito da Universidade Nova de Lisboa), Director at NOVA IPSI Knowledge Centre on Intellectual Property and Sustainable Innovation, Researcher at CEDIS (Centre of Research and Development in Law and Society) (giulia.priora@novalaw.unl.pt).