Ei-iE

E-commerce has emerged in recent years as critical part of commercial activity. With mounting online sale of goods and delivery of services, the implications of e-commerce for the education community arise at both the commercial and policy levels. Indeed, e-commerce and online education delivery played an increasingly prominent and important role throughout the COVID-19 pandemic, including for the increasing commercialisation in and of education.

As further discussed in an Education International policy brief " E-commerce, Education and Copyright", the merger of e-commerce and education opens the door to new, for-profit online educational service providers that may have a disruptive impact on a sector that has traditionally operated primarily on a non-commercial, public interest basis. Indeed, e-commerce has facilitated a growing for-profit education sector at both the K-12 and postsecondary level. This includes online learning, publishing, research, instruction and service delivery.

Unfortunately, the implications for education of these e-commerce and copyright rules are frequently an afterthought as trade negotiations are primarily driven by intellectual property (IP) interests, including the cultural and publishing sectors. There is a need for greater understanding of the implications of e-commerce and IP rules within trade agreements, the retention of policy flexibility and privacy safeguards, the scope for exceptions for education and research, and the opportunity for educational stakeholders, including teachers, students, and institutions, to participate in trade policy development at the national and international levels.

This is particularly true at the World Trade Organisation, where the ongoing e-commerce work programme touches on the cross-cutting area of e-commerce, education and copyright. These include rules on copyright, intermediary liability, open data, data transfers, data localisation, non-discriminatory treatment of digital products, and e-transaction certainty.

The rules are designed to support the free flow of services and may limit domestic abilities to establish restrictions or other localised policies in relation to commercial activities in education and research. Some of the issues could have a direct impact on educational policies by reshaping foundational law and policies in the interest of commercial rather than public interests.

E-commerce at the WTO is not a new issue. The WTO first officially recognised the growth of global e-commerce and its creation of new opportunities for trade in May 1998 and since steadily expanded its work in the area. In fact, dozens of countries have submitted policy positions on the current WTO e-commerce work programme, touching on a wide range of issues that have significant implications for education and research. As of January 2021, there are 86 WTO members participating in these discussions, accounting for over 90 per cent of global trade.

The e-commerce work at the WTO remains a work-in-progress with shifting positions among many countries. However, key issues for the education community include:

• Copyright remuneration, which focuses on payments that copyright owners receive when their work is being used. Several countries, including Brazil and the Ukraine, envision using the WTO process on ecommerce to establish new global rules on copyright that could have significant implications for education and research. For example, remuneration issues have been used in some fora to call for restrictions on limitations and exceptions that are essential for a balanced copyright approach that respects the needs of teachers, students, and educational institutions.
• Intermediary liability is used to hold websites and online platforms accountable when their users upload or create content that is unlawful (e.g. copyright infringements) or harmful. The U.S. is one of several countries that has called for the establishment of global safe harbour rules that would limit or eliminate liability for content posted on websites. From an educational perspective, the adoption of such rules would potentially protect educational institutions that establish their own learning or research platforms from criminal liability. However, the same rules also insulate the large Internet platforms from liability, even when the content is used for educational or research purposes.
• Anti-circumvention rules, sometimes referred to as legal protection for digital locks, has been a significant copyright concern for the education community for many years. The anticircumvention rules, which stem from the 1996 WIPO Copyright Treaties, afford legal protection for digital technologies that may restrict access to copyright works. In the context of education, the copyright exceptions might allow a teacher to show an online video in class, however, even though it is lawful for the teacher to use this video it is unlawful for the teacher to break the digital lock. The digital lock, therefore, prevents the teacher from making us of his/her right. The Brazilian delegation supports re-assessing the anti-circumvention rules, in light of their impact on education, which represents an important opportunity for the education community.
• Electronic transmissions can “encompass anything from software, emails, and text messages to digital music, movies and video games”. Customs duties on electronic transmissions represented the first e-commerce issue addressed by the WTO, which established a longstanding moratorium on new duties. A permanent moratorium is supported by many countries including New Zealand, Russia, Japan, Singapore, the U.S., Ukraine, Canada, EU, China, and Brazil. If adopted, the absence of customs duties could have implications for cross-border education initiatives such as international online courses and exchanges between researchers and education institutions.
• Data localisation rules, which require data to be stored locally, have emerged as an increasingly popular legal method for providing some assurances about the privacy protection for personal information. Data localisation concerns have already arisen within the education community, particularly where cloud-based global providers offer low-cost online educational services. These services may offer advantages, but the privacy risks associated with storing student data in countries without adequate privacy safeguards may raise concerns from students, parents, and educators. The data localisation provisions may therefore limit the ability to require that student data be subject to a localisation requirement.

The prevalence of e-commerce means that the education community can ill-afford to ignore the policy issues associated with this increasingly important part of modern-day commercial activities. Indeed, as policy makers and trade negotiators rush to facilitate cross-border ecommerce activities, the educational community must be at the table to ensure that the interests of educational institutions, teachers, education support personnel, researchers and students are fully reflected in the resulting agreements and policy documents.