UCUHE/193   23 May 2013

University and College Union

Higher Education

Carlow Street, London NW1 7LH, Tel. 020 7756 2500, www.ucu.org.uk

Recording and Filming of Lectures –  UCU Guidance

A number of institutions have been developing facilities to film or record lectures, creating digital or on-line libraries of recorded lectures and other teaching sessions for use as future learning tools. UCU branches/LAs have raised concerns about the development of these practices. Questions have been raised about the pedagogical value of such developments, the contractual obligations of staff, and the ownership and use of materials developed and delivered by them. In particular, there are legal questions that need to be clarified with regard to intellectual property and copyright, performance rights and data protection. Furthermore, there are implications in terms of workload for staff expected to put in place the necessary arrangements for the recording/filming of lectures and the need for appropriate technical support. There are also concerns about the inappropriate use of recorded lectures and teaching sessions.

Whilst we would encourage the development of such material where it is of educational value, and in meeting accessibility needs, the UCU position is that we do not accept that our members should be filmed or recorded without their agreement.  The filming or recording of lectures and issues relating to the preparation, delivery and future use and dissemination of this recorded material should be covered by a negotiated agreement between UCU and the employer, addressing the issues raised.  The attached guidance outlines the UCU position on these issues, providing a set of principles and identifying the key legal questions to which branches/LAs should refer in discussing this matter within their institutions and in negotiating agreed policies with the employer.

Michael MacNeil

National Head of Higher Education

UCU guidance: Recording/Filming of Lectures – issues related to the preparation and delivery of recorded teaching materials, and the legal rights of staff.

1. With the marketisation of higher education and the spread of new technologies to support learning, a number of institutions have been developing facilities to film or record lectures, and developing digital libraries to store lectures to be used as future teaching tools.

1. UCU branches/local associations have raised concerns about the development of such practices. Questions have been raised about the pedagogical value of such technologies, given that they may encourage superficial and dependent learning strategies and discourage attendance. Moreover, these developments open up the possibility of the franchising or selling of staff lecture performances, and the expansion of on-line learning based on a repository of recorded lectures. Ultimately, the spectre is raised of the existence of a repository of recorded lectures being used as justification for a reduction in direct student contact time and in actual teaching staff.

1. The filming/recording of lectures, seminars and other teaching sessions that require the presence of teaching staff raises a number of questions with regards to the contractual obligations of staff, and the ownership and use of materials developed and delivered by them. In particular, there are legal questions with regard to intellectual property and copyright, performance rights and data protection. Furthermore, there are questions regarding the obligations placed on staff to put in place the necessary arrangements for the filming/recording of their teaching.  This has implications in terms of workload and the need for appropriate technical support.

1. Where institutions propose, intend or indeed already are filming/recording lectures and other teaching sessions developed or delivered by UCU members, it is important that branches/local associations raise these with the institution’s management, referring also to the guidance on these issues provided below.

UCU Position

1. The UCU position is that we do not accept that our members should be filmed or recorded without their agreement.  If there is an academic case for filming/recording lectures or other forms of teaching, it should be covered by a negotiated agreement between UCU and the employer.  It should specify the circumstances in which filming/recording is acceptable, the manner of pre-consultation with the staff concerned, the input of staff into the production process (to ensure academic quality), the availability of  appropriate training, the limitations on the subsequent use of the material, and the right of appeal for staff dissatisfied with any of these arrangements. Agreements should indicate how filmed/recorded lectures will be stored and subsequently used. This includes making clear who has access to such recordings, and rules for usage and dissemination.

1. Participation in filmed or recorded lectures/teaching should always be voluntary. However, we would encourage UCU members to participate where it can be shown to be academically beneficial to students as a supplement to normal teaching. We would oppose the use of filmed/recorded material as an alternative to employing adequate numbers of suitably qualified staff or to providing adequate teaching time or space.

1. UCU members should be supportive of requests for lectures and teaching sessions to be recorded by disabled students where this is required as a ‘reasonable adjustment’. Institutions should also be reminded of their obligations to make reasonable adjustments for disabled staff. Where the institution seeks to record/film teaching sessions delivered by disabled staff, reasonable adjustments should be made where requested. This may also mean an agreement not to film/record the lecture where it creates a particular difficulty for the member of staff. Whether or not a member of staff has a disability, there may be other personal reasons why he/she does not wish to be recorded. This should be respected by the institution.

1. UCU is strongly opposed to recorded/filmed teaching sessions being used in the performance management of staff. Whilst we recognise that recorded teaching material may be of benefit as a teaching tool, we oppose its use as a tool in performance management policy or in capability or disciplinary processes. Agreements and institutional policies concerning the preparation and delivery of recorded material, and filmed/recorded teaching, should be based on the understanding that such materials will be used only for educational purposes and not for evaluating ‘teaching quality’ or for performance management purposes.

1. UCU expects that in ensuring that recorded material is only circulated for educational purposes the relevant agreements and policies also safeguard the academic freedom of teaching staff. Institutions and staff should be aware of the potential for recorded material to be edited and taken out of context, in a way in which certain statements by teaching staff could be regarded as defamatory, offensive or inflammatory. Institutional procedures should include safeguards against material being circulated and interpreted out of context. The risk of this occurring should be assessed, paying the due regard to the need to protect the academic freedom of teaching staff (see the UCU statement on academic freedom here: http://www.ucu.org.uk/3672). Institutions should bear legal liability for the content of any material recorded and made available to students and other parties. All legal liabilities should be made clear to those involved in the process and set out in institutional policies.

1. Where there is an expectation that teaching sessions are recorded/filmed, staff involved in delivering the teaching should be provided with the appropriate technical support. Agreements and institutional policies concerning the preparation and delivery of recorded material, and filmed/recorded teaching, need to ensure that appropriate technical support is provided, and that impacts on workload are considered. Teaching staff should not be expected to put in place the necessary technical arrangements for filming/recording themselves unless they are appropriately trained to do so and this is stated in their terms and conditions. Any impact on the workload of teaching staff of the recording/filming should be assessed, and considered within the broader allocation of workload.

1. Agreements should also cover the member of staff’s legal rights. Institutions need to pay due regard to the copyright, performer’s rights and rights to data protection of teaching staff when filming/recording lectures. These are explained in more detail below. The legal rights of staff should be made clear where the institution seeks to record/film lectures delivered by them.

JISC legal have produced a range of useful guides in relation to copyright and intellectual property law and its application in education, and covering a range of specific issues. These can be found here: http://www.jisclegal.ac.uk/LegalAreas/CopyrightIPR.aspx

These include a useful legal guide on Recording Lectures which can be found here: http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/1608/Recording-Lectures-Legal-Considerations-28-July-2010.aspx

Copyright

1. The relevant legislation for copyright is the Copyright, Designs and Patent Act 1988 (CDPA).  It states that:

“Where an employee creates a literary, dramatic, musical, artistic work, or a film work, in the course of their employment, the default position in law is that copyright in the work will belong to the employer, unless there is a contract or agreement to the contrary” (s. 11[2]))

1. UCU believes that institutions should have negotiated policies which ensure that lecturers and researchers retain control over their work to the greatest extent reasonable and practicable. This includes retaining copyright in material produced during the course of their duties.

1. In higher education, many employers waive their rights to the copyright of standard academic publications. The national contract for post-92 institutions establishes that academic staff should retain copyright ownership in “scholarly works”, which includes books, contributions to books, articles and conference papers. However, the copyright ownership of teaching materials is generally not treated in the same way, with the default legal position (ownership by the institution) usually applying. The national contract for post-92 institutions states that copyright in course materials produced by employees in the course of employment for the purposes of courses run by the institution belongs to the institution. See: http://www.ucu.org.uk/index.cfm?articleid=1972

1. Nevertheless, HEFCE guidance on ‘Intellectual property rights in e-learning programmes’, produced in 2006, suggested that lecture notes, as distinct from formal course/module handouts and learning materials, are generally regarded as the property of the lecturer, often as a matter of custom and practice.

1. Where a lecturer produces teaching materials in the course of his/her employment, the institution may refer to the default legal position and claim ownership of the copyright. It may also claim that copyright permission would not be required to include these materials in a recording. However, the JISC legal guide points out that s.11 (2) of the CDPA does not apply to sound recordings. The first owner of copyright in a sound recording will be the producer. Where the institution organises and directs the recording of a lecture, it may take the view that it is the ‘producer’ of the sound recording. However, if a lecture or other form of teaching session is recorded at the lecturer/teacher’s own initiative then he/she might arguably claim to own the copyright.

1. Furthermore, if the institution hires a production company or outsources the production of the podcasts to an third party, then the copyright in the recording may belong to that outside party (although the institution might seek to ensure that the contract with the third party assigns the copyright to the institution).

1.  Nevertheless, in the context of casualisation, it is important to note that employer ownership of copyright applies where there is a ‘contract of employment.’ Where a person works under a ‘contract for services’, he/she may be considered to be an independent contractor and works produced may then be considered to be commissioned works. In such cases, copyright ownership may lie with the person who created the works, rather than with the organisation which commissioned it (see Intellectual Property Office website: http://www.ipo.gov.uk/types/copy/c-ownership/c-commissioned.htm).

1. Where the institution does own the copyright to teaching/ learning materials produced by employees, it may take the view that it is therefore also entitled to make video or audio recordings of such materials being communicated by staff, i.e. in lectures or teaching sessions.  Attempts to do this should be questioned by branches/LAs. Institutions should seek consent to implement such practices. There should be a proper negotiated agreement in place regarding the application of such practices.

1. The recording/filming of lectures also raises questions about the use of, and references to materials produced by other parties, for which neither the lecturer nor the employing institution owns the copyright (for instance a reading from another person’s work or an audio or video-clip produced by another party).  While the use of materials produced by third parties may be permitted in the course of activities of an educational establishment (s.34 CDPA), for example in lectures and teaching sessions, this may not apply when it comes to recording and storing such sessions and their further distribution.  In such cases, the onus should be on the employer, not the individual lecturer, to ensure any necessary permissions have been obtained and copyright has not been breached if it intends to record/film a lecture and for any subsequent usage.

The JISC legal guide on the Recording Lectures provides more detailed commentary on the issue of copyright and third party rights (JISC 2010: 6-8).

Performers’ Rights

1. In questioning the right of the employer to film/record lectures without the consent of the lecturer, branches/LAs should raise the issue of the lecturer’s performer’s rights.   Part II of the CPDA provides for performer’s rights, which exists separately to copyright. Performer’s rights last for 50 years from the end of the year of the performance, or if the performance is released as a recording, 50 years from the year of release.

1. A performer’s rights are infringed where a recording of a substantial part of a performance is made without consent, where a copy of that recording is made without consent, or where copies of that performance are issued to the public without consent (s.182 CDPA). A performance is defined in s.180 (2) of the CPDA as ‘a dramatic or musical performance, a reading or recitation of a literary work, a performance of a variety act or any similar presentation.’

1. Although not expressly mentioned in this legislation, the JISC legal guide suggests that lectures as a ‘live delivery’ and ‘dramatic communication to others of opinions, thoughts and interpretation’ would be covered by the definition of performance.

1. The JISC legal guide suggests that institutions should consider performer’s rights carefully, and that ‘it is a risk decision for a college or university as to whether performer’s rights will be assumed to apply to everyday lectures’. It recommends that institutions clarify the situation through a contractual agreement or licence with all ‘performers’ (JISC 2010: 5).

1. As stated above, the UCU position is that any such agreements covering the performance rights of staff are negotiated and agreed with the trade unions.

1. The HEFCE guidance ‘Intellectual property rights in e-learning programmes’  produced in 2006 in order to promote good practice for managers in Higher Education Institutions (HEIs), should also be referred to by branches/LAs in negotiating agreements on this matter and ensuring that contracts of employment respect the performer’s rights of teaching staff.

1. Paragraph 105 (page 14) of the HEFCE document suggests that:

‘Contracts of employment with staff should make clear that they own the performers’ rights in any video or other recording of their own lectures or presentations. Exploitation of such materials should only be undertaken by the HEI following negotiation of a licence from the member of staff.’

1. The document also includes a model contract for e-learning which could be referred to in negotiating an agreement. However, safeguards would need to be built in regarding the need to get the consent of individual members of staff, and the way in which recordings are disseminated/ distributed in future.

1. Institutions also need to consider the rights of any other individuals that have contributed to a lecture or teaching session being recorded. An interactive teaching session may also involve active student participation. As the JISC legal guide suggests, each contributor may own rights in their individual ‘performance’ and consent will be required from all parties regarding the further use of the performances.

1. Institutions should therefore be asked to clarify how they propose to address the performer’s rights of students and other parties that contribute to any teaching sessions that are recorded.

Moral Rights

1. The JISC legal guide also refers to moral rights, that is, the right to be identified as the author of a copyright work and the right to object to any derogatory treatment of the work (JISC 2010: 6). While these do not apply in copyright terms to works created as part of employment, they will ‘where asserted’ apply to an employee’s performance (s.205 CDPA).

1. Agreements on the recording/filming of lectures should also therefore clearly address the moral rights of staff as performers in any filmed/recorded lectures.

Data Protection

1. The Data Protection Act allows individuals to control how information about them is to be used. As explained in the JISC legal guide, in recording identifiable living individuals, the institution is processing their personal data. Such processing must be undertaken in line with data protection principles.  Consent on the part of individuals being recorded should thus be required.  Where an individual does not provide consent, the data cannot be lawfully processed (JISC 2010:9).

1. Agreements pertaining to the recording/filming of lectures should thus address the need to obtain the consent of individual lecturers when the institution seeks to film/ record their lectures. They should also provide for opt-outs for teaching staff who do not wish to have their lectures/teaching sessions filmed/recorded, for data protection reasons.

Disability and Reasonable Adjustments

1. Policies and agreements on the filming or recording of lectures will also need to address the question of ensuring accessibility for all students and making reasonable adjustments for students with disabilities. Providers of educational services need to make reasonable adjustments for disabled staff, students and visitors under the Equality Act (2010), previously the Disability Discrimination Act (1995).

1. UCU branches/LAs should work closely with management to ensure that necessary reasonable adjustments are put in place for disabled students.   Providing recordings of lectures to disabled students or allowed disabled students to record lectures themselves is one reasonable adjustment that institutions may consider.

1. This is an option that is likely to be considered for visually impaired students. The JISC legal guide notes that the law on copyright makes exceptions for visually impaired persons accessing or making recordings.

1. The Copyright (Visually Impaired Persons) Act 2002 amended the CDPA to enable visually impaired people, in certain circumstances, to make, or have made, ‘accessible copies’ of copyright works without the need to seek permission from the copyright holder.

1. A visually impaired person is defined by the Act as someone who is blind or partially sighted, unable to hold or manipulate a book through physical disability, and unable to focus or move their eyes normally for reading.

1. One of UCU’s predecessor unions, NATFHE, developed joint guidance with Skill (National Bureau for Students with Disabilities) and the former Disability Rights Commission (DRC) on copyright and the recording of lectures for disabled students. Skill was disbanded in 2011, and the DRC subsumed into the Equality and Human Rights Commission (EHRC) in 2007. The guidance is still available on the Skill website here http://www.skill.org.uk/page.aspx?c=181&p=292 and is also attached as appendix A (together with a forward written by the Skill policy director, summarising the concerns raised in discussions).

1. The key points of the guidance are as follows:

• Requests for special adjustments should be made to the institution’s disability officer or similarly designated person.
• Where a student’s disability requires that a reasonable adjustment be made in terms of allowing the student to record a lecture, the student should recognise that the content of the lecture remains the intellectual property of the lecturer delivering it.
• If recording the lecture, the recording must be used only for the student’s personal learning needs and not be passed on to anyone else other than for transcription purposes.
• The lecturer will be informed that the student is recording the lecture, but will not be given the specific reason for this unless the student has consented to this.

• Whilst putting the necessary adjustments in place for disabled students, institutions should remain aware of their obligations to also make reasonable adjustments for disabled staff. This may also mean an agreement not to film/record the lecture where it creates a particular difficulty for the member of staff.

Podcasts and other forms of ‘Lecture capture’ and dissemination

• New media technology has led to a proliferation of formats for delivering teaching material, and methods for recording or capturing teaching sessions. This guidance is predominantly focused on the capture of lectures and teaching sessions through audio or audio-visual recordings. Once ‘captured’ this can be disseminated in a number of ways, including via digital or on-line libraries and via podcasts. As with other forms of media, if a podcast is based on an audio or video recording of a lecture/ teaching session, then the legal positions outlined in this guidance, as regards copyright, performer’s rights and data protection, would apply in the same way.

• If the podcast takes the form of an audio recording, there may well be a difference between bespoke podcasts created for teaching purposes at the initiative of the teacher/lecturer and those created and arranged by the institution. In the former case, the teacher/lecturer may claim to be the producer and to own the copyright. In the latter case, the institution may claim to be the producer and to own the copyright. In both cases, performer’s rights belong to the person delivering the material.

• It should also be noted that if the podcast constitutes a reading of material produced by another person then the copyright may reside with the person who produced the material. Nevertheless, the performer’s rights will belong to the person delivering the material, rather than the copyright owner.

• As with other forms of video or audio recording, if the institution hires a production company or outsources the production of the podcasts to an third party, then the copyright in the recording may belong to that outside party (although the institution might seek to ensure that the contract with the third party assigns the copyright to the institution).

• It should also be noted that when a podcast is made available to others to download, the law will presume that you are granting an implied license to others to use the podcast.

For further legal considerations on podcasts and their use in education, see the JISC Legal guide on ‘Podcasts and the Law’:   http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/865/Podcasts-and-the-Law-11-April-2007.aspx

Recording of Lectures by Students

• The proliferation of mobile devices has increased the likelihood that students will seek to record lectures. The view of UCU is that clear guidelines should be provided to all students as to the recording of lectures and other teaching sessions, and that such recording should only be permitted with the lecturer/teacher’s agreement (although, as stated above, we support recording being facilitated where a disabled student has requested this as a reasonable adjustment). Institutional policies and agreements should acknowledge that lecturers/teachers have performer’s rights where students seek to record lecturers, and this should be explained to students where necessary.

• UCU would support the approach taken by a number of institutions whereby guidelines have been issued to students stipulating that they can only record lectures/teaching sessions after requesting permission in advance from the teacher/lecturer. A lecturer/teacher should be entitled to refuse to be recorded in such cases (unless a disabled student has requested this as a reasonable adjustment).

• In tutorials, seminars and other sessions involving student participation, the situation is more complex and permission from all those participating may be required. Some institutional guidelines state that recording of such sessions should only be permitted where requested for the purpose of a ‘reasonable adjustment’ by disabled students.

• Filming or video-recording of lectures/teaching sessions should not normally be permitted (again with exceptions were a ‘reasonable adjustment’ requires it).

• It should be made clear to students that the recording of lectures/teaching sessions should be for educational purposes only. Further circulation of the recorded material or uploading and dissemination on websites should not be permitted. This should be clearly stipulated to students by institutions, and measures should be put in place to prevent this occurring.

Further Reading

HEFCE, Intellectual Property in e-learning programmes, July 2006/20. See: http://dera.ioe.ac.uk/5972/

Intellectual Property Office webiste, section on ownership of copyright:  works http://www.ipo.gov.uk/types/copy/c-ownership.htm

JISC Legal, Recording Lectures: Legal Considerations, JISC Advance, July 2010. See:  http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/1608/Recording-Lectures-Legal-Considerations-28-July-2010.aspx

JISC Legal, Podcasts and the Law, 11 April 2007. See:

http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/865/Podcasts-and-the-Law-11-April-2007.aspx

JISC Legal guides on Copyright and Intellectual Property Law: http://www.jisclegal.ac.uk/LegalAreas/CopyrightIPR.aspx

Appendix A

NATFHE, Skill and DRC Guidance on intellectual copyright and recording lectures

by Jenni Dyer, Skill’s Policy Director

In 2003, Skill, the former Disability Rights Commission (DRC) and the lecturers’ union, NATFHE, worked together on an issue which had arisen when some disabled students, who wished to record their lectures in order to better access their learning and teaching, were prevented from doing so by individual lecturing staff.

What is the issue?

The recording of lectures is generally considered to be a reasonable adjustment under the provisions of the DDA Part 4. However, increasing numbers of disabled students contacted both the DRC and Skill because they were being prevented from recording lectures by some lecturers who felt that their intellectual copyright was being breached by the recording of their lecture. Increasing numbers of lecturers had also contacted NATFHE to seek advice on what their rights were when their lectures were recorded and whether copyright law took precedent over the DDA. In all cases, any handouts etc given out in the lectures remained the copyright of the institution concerned and, therefore, the issue was around what the lecturer actually said during the lecture.

The lecturers’ argument

Some lecturers argued that, as they had the intellectual copyright over what they said in the lecture, committing it to tape may enable students to plagiarise their material or ideas more easily. Other lecturers, for example those in Middle Eastern or Islamic studies, cited examples of times when they had used arguments from other theorists that, when taken out of context, could be seen as inflammatory. They were concerned that such comments on tape could more easily be taken out of context and distributed. And, finally, other reasons given for not allowing recording of lecturers included concerns that tapes could be passed round and students could then feel they didn’t have to attend the lectures if they knew someone was taping it and they could obtain a transcript.

Our concerns

Skill and the DRC both believed that some of these reasons were rather spurious and that students were being unfairly prevented from accessing their learning. NATFHE was particularly concerned to ensure that lecturers were aware that if they continued to refuse to allow students to record their lectures, despite the university agreeing that this was a reasonable adjustment, they could be taken to court individually under the ‘individual liability’ provisions of the DDA Part 4.

Reasonable adjustments

Skill, NATFHE and the DRC all agreed that there may be times when recording a seminar or tutorial may not be reasonable but that these would be extremely few and far between. When recording seminars or tutorials, for example, fellow students need to be told that they are being recorded. There may be the odd occasion when some students do not want to be recorded – an extreme example is that on a counselling course some students may be talking about their own personal experiences and may feel uncomfortable doing this if it is being recorded. Institutions may then have to make an alternative reasonable adjustment.

Joint solution

Nevertheless, in order to facilitate equality of access to oral lectures for all students, Skill, the DRC and NATFHE produced joint guidance, which set out an approach to enable students to access their learning and teaching in the most appropriate way whilst maintaining existing protections in terms of the intellectual property rights of academic staff. Students would be encouraged to talk to their disability adviser about their learning needs and their need to record lectures. Lecturing staff would be informed who in their lecture was recording their lectures, but not the reasons why unless the student gave specific permission for such information to be divulged. Thus, the students’ confidentiality was protected as was the lecturers’ intellectual property rights.

Implementation

We recommended that the guidance should be included within the registration pack provided to students during the enrolment process within all institutions and that all academic staff should be informed of the guidance. This would ensure that staff would understand why students were recording their lecture and could be confident that their copyright was not being breached in any way.

It is hoped that all institutions are now aware of this guidance and that they are all implementing it.

The Guidance

Arrangements for the recording of oral lectures by students with specific learning needs:

The university wishes to make every effort to assist students with specific learning needs and to this end students with specific learning needs may record lectures in accordance with the procedures outlined below.

Adherence to these procedures will ensure that the university is able to make a reasonable adjustment under the terms of the Disability Discrimination Act in respect of providing equal treatment and equal access to educational opportunity for all students regardless of their disability status.

If you need to record oral lectures you should note that the content of an oral lecture remains the property of the lecturer delivering it. If taping a lecture, the tape must be used only for your own personal study; you should not reproduce it or pass it on to anyone else other than for transcription purposes.

If there are particular reasons why you find it difficult or impossible to take lecture notes (eg visual or audio impairments, dyslexia, mobility impairments, etc) and therefore you need to record oral lectures you are advised to follow the following procedures:

1 Inform the university disability officer or designated person of your particular needs. This will assist the university in making an appropriate adjustment to improve your student experience. This will also help the university to facilitate the recording of lectures and enable the university to implement other measures that may enable us to meet your specific educational requirements.

2 Make it clear whether you are happy for lecturers to be told why you are recording lectures in order to help them meet your learning needs, or alternatively whether you wish those reasons to remain confidential.

3 You should confirm that you understand that the lecturer will be told that you will be recording lecturers, but that the lecturer will not be told the specific reason for this unless you have given permission.

4 An understanding that the content of lectures remains the intellectual property of the lecturer form part of the learning agreement between you and the university and this should be accepted by all students.

If you are unsure of the position in regard to the recording of lectures, or if you have any other relevant learning needs, you are advised to contact the disability officer or designated person.