Lecture Recordings - A Trap for the Unwary?
In the wake of the pandemic, with much university teaching being moved online, questions have been raised about the rights of lecturers to determine whether or not their lectures will be recorded and what can be done with such recordings.
A university lecturer preparing a lecture may create a set of notes or a script. If the lecturer is an employee of the university, the copyright in the notes or script will automatically vest in the university as the employer. However, when the lecturer delivers the lecture, the lecturer may have certain performers' rights in the lecture as a performance. Performers' rights do not automatically vest in an employer; initially at least they stay with the performer. But is a lecture a performance? And if so, what does that mean for universities?
Is a Lecture a Performance?
The Copyright, Designs and Patents Act 1988 ('the Act') gives specific examples of what may constitute a performance, including a reading or recitation of a literary work and a performance of a variety act or any similar presentation.
A lecture may be recitation of a literary work, if there are pre-existing lecture notes or other literary works from which the lecture is derived. However if the lecture is improvised, it is less clear whether it will fall within this category. There is debate as to whether a literary work could be improvised (as a dramatic or musical work may be) or whether, for performers rights to arise, a literary work must exist before the delivery of the performance.
A lecture may alternatively be a 'similar presentation' in the sense of something which has been rehearsed. In 2016 the High Court determined that, where an animal handler spoke about an animal enthusiastically without a formal script, it was clearly something rehearsed which would be described in ordinary language as a performance. This ruling depends on the lecture to some extent being rehearsed. Where a lecture is entirely improvised, it may still be a performance, but this has not been established beyond doubt.
Given the uncertainty about improvised performances, and the difficulty in assessing the extent of preparation for a lecture, it is pragmatic to assume that performers' rights do arise in all cases, even though this may not in fact always be the case.
What Does this Mean for Universities?
Assuming that all lectures are performances, a lecturer's rights include the right to record or broadcast their lecture and the right to make the recording available by electronic transmission or available to students.
These rights will not automatically vest in an employer in the same way that copyright does under the Act, although it is possible for certain performers' rights to be assigned to an employer and may be captured in a general assignment of intellectual property in a lecturer's employment contract. However, importantly, the right to actually make the recording cannot be assigned (though it can be waived).
There are a number of 'permitted acts' in relation to copyright works which educational establishments may carry out notwithstanding performers' rights. These permitted acts permit a university to deal with lecture recordings and broadcasts in a number of ways for educational purposes but, importantly, do not permit a university to actually make a recording or broadcast.
Therefore, to avoid the risk of a claim for infringement of a lecturer's rights, a university should obtain consent or a waiver of rights from the lecturer in order to make any recording of a lecture. Further consents or waivers would also be required to allow the university to deliver recorded lectures to students in ways that fall outside the specific permitted acts.
Ideally, universities would obtain from all lecturers a signed written assignment and waiver of performers' rights in respect of all past and future performances. Whilst this could be incorporated into employment agreements, it may be impracticable and unwelcome under current circumstances to change the terms of such agreements. In the short term, negotiations with lecturers may lead to qualified waivers and consents being granted to a university, which take account of the respective interests and perspectives of both parties.
It pays to be aware of a few additional legal considerations if you are intending to make large scale use of recorded lectures:
- Consider other individuals who may appear in lecture recordings, such as students asking questions. Make it clear to them in advance when lectures are being recorded.
- Consider whether other individuals who appear in lecture recordings may also be performers, such as students giving presentations.
- Consider the collection and processing of personal data when recording staff and students, in the context of the provisions of the UK GDPR and Data Protection Act 2018.
- Consider other intellectual property rights which may be engaged in lecture recordings or in the content featured in lecture recordings, such as quotes from literary work, photographs, video clips or music.