Introduction

At a time when education in the global south is on the front burner, EdTech (Educational technology) companies in Nigeria are stepping forward to transform and improve the learning experience, especially for k-12 and tertiary students. EdTech, as with other tech focused industries is quite broad, involving multiple stakeholders and a wide range of products; put simply EdTech is the reasoned and effective use of technology to support or facilitate learning, performance and instruction.¹

The EdTech product landscape can be sorted in the categories of immersive tech, early childhood learning, STEM/coding and technology, learning management/school administration systems (LMS), social-emotional learning, language learning, gamified learning, online courses/e-learning.² In Nigeria, the COVID-19 pandemic catalysed the growth of existing EdTechs, particularly in the e-learning/content distribution and LMS space, and the launch of new entrants, some of which have already secured pre-seed funding.³

Depending on the product category of an EdTech, the legal requirements may vary but there are parallels that cut across all product/technology categories, which can have significant impact on the trajectory of EdTechs within a given jurisdiction. This article aims to look at some of the regulatory trends and legal concerns in the EdTech sector that can have significant impact on the success of EdTech companies in Nigeria.

1) Data Privacy and Security

In the age of big data, data privacy is a key concern both for tech companies and end-users. In the case of EdTechs offering preschool and K-12 products, it becomes more sensitive because of the age of the end-users. In addition to data privacy legislation such as the General Data Protection Regulation of the European Union and the California Consumer Privacy Act of the State of California in the United States of America there are specific legislation designed to protect children’s privacy, such as the Children’s Online Privacy Protection Act (applicable to children under the age of 13) of the United States of America and the recently effective Age Appropriate Design Code (the Children’s Code) of the United Kingdom. These raise the compliance bar for EdTechs to ensure that their data policies are designed to serve the best interest of children in the collection, processing, and security of personally identifiable information. While no such child-specific legislation is available in Nigeria, the Nigeria Data Protection Regulation, 2019, Section 37 of the Nigerian Constitution, 1999 (as amended) and Section 8 of the Child Rights Act, 2007 guarantee a Child’s right to privacy. The data privacy issues for EdTechs will span from obtaining informed consent, to ethical processing, data security and complying with reporting requirements. While data privacy legislation is still in its developmental stages in Nigeria, EdTechs (especially those in their growth phase) must be proactive in compliance with international best practices in their collection, processing and security of personally identifiable information.

2) Intellectual Property

The combination of two intellectual property-based sectors i.e. education and technology can make securing appropriate protection even more complex both from the software and hardware aspects, the content aspect and the learning theories/systems aspect. In EdTech, there is a convergence of the 4 key segments of intellectual property protection, being – Copyright, Patent, Trademark, and Industrial Designs. While the Copyright, Industrial Design and Trademark facets are reasonably straightforward, Patents in EdTech are somewhat contentious. An example of this contention is the patent that was granted in 2006 by the US Patent Office to Blackboard Inc., an American Edtech Company, for its LMS; following public outcry that the patent would stifle innovation and lawsuits with its competitor, Blackboard eventually abandoned the patent.⁴ Notwithstanding the controversial nature of patents in tech, some entities have successfully obtained patents for their EdTech solutions; an example is the Mind Research Institute which has several patents for their virtual learning solutions.⁵ In Nigeria, obtaining a patent for software aspect of an EdTech will be difficult if not impossible because the Patent and Designs Registry is of the opinion that software does not meet the requirements of patents under the Patents and Designs Act.

Again, where an EdTech needs to use a patented invention, the appropriate step is to negotiate a licensing agreement with the patent holder to avoid infringement lawsuits. In the case of B2B EdTechs (particularly those with LMS products), the policies and contracts must be clear on the roles of both parties and the ownership of intellectual property on the platforms. Certainty as to who owns the right to what and in what proportions at every point in the business cycle is paramount.

3) Human Resource

For content-based EdTechs, Human Resource is a subject that cannot be ignored. Contracts must be clear and unambiguous as to the rights and obligations of the parties, especially as it relates to intellectual property rights, non-disclosure of trade secrets and, perhaps restrictions as to future employment. Regarding restrictions as to future employment, Section 68(1)(e) of the Federal Competition and Consumer Protection Act, 2018 limits the validity of such restrictions to 2 years.

For EdTechs that provide access to tutor services either online or in-person, questions may arise regarding liability for the misconduct of the tutors. Whether the tutors are engaged at all or as freelancers or employees, the levels of responsibility and liability must be clear both to the tutors and the end-users. Where the EdTech bears some liability, it is advisable to purchase an insurance policy to hedge the risk.

4) Liability for User-generated Content

Who bears the liability when end-users misconduct themselves in chatrooms created and curated by an EdTech to enhance learning? What happens when an end-user makes a defamatory statement against another end-user? Or an end-user is being cyber-bullied by another? EdTechs must be proactive in policy formulation and in ensuring that they put additional safeguards in place to protect end-users who are children.

5) Government / Political Risk

Political risk ranks high on the list of considerations for every business, some more than others. While EdTech may appear to be an exception to this rule, EdTech companies in China tell a different story. In 2021, the Chinese government introduced new regulations which requires all companies and institutions (including EdTechs) that teach school curriculum to convert their business to non-profits; restricts them from accepting foreign investments or raise capital through the stock market. The regulations also banned any form of after-school tutoring on weekends and holidays, and any form of after-school tutoring for preschoolers. Following the regulations, listed EdTech giants shed a significant amount of value and are now working to pivot their business models.⁶ At this time, the EdTech space in Nigeria can be said to be significantly unregulated, but it will be dangerous to assume that it will continue to remain the same. EdTechs must therefore be in consonance with the policy makers both at the federal and state levels of government to see to it that the regulators make policies that are in tune with the needs of the industry.

6) Ethical Concerns

As reiterated throughout this article, EdTechs that target preschoolers and k-12 students have a higher burden to ensure that the end-users are not unduly exposed to risk of harm or put at a disadvantage. Content should be curated and standardised to meet the educational requirements of the end-user in compliance with government regulation; pop-up ads should be minimised, if not completely blocked; and special needs end-users should be taken into consideration in product development.

EdTech in Nigeria as it is today, is still in its infancy and certainly bound to continue to grow in leaps and bounds post-COVID. As startups continue to enter the market and others enter their growth phases, the industry and its risks will evolve, those that will survive must be proactive in dealing with existing issues and anticipating future challenges.