As the latest wave of strikes at UK universities has unfolded over the past four weeks, the question has once again been raised of whether the impact on students – and, hence, the efficacy of the industrial action – could be minimised by simply showing them recordings of absent academics’ lectures from previous years.
That could become an even more pressing issue if the coronavirus forces the shuttering of UK lecture theatres, as it has in China, Singapore, Italy and elsewhere.
Many universities require their staff to record their lectures and make the recordings available to students. Some academics complain that this practice is destroying students’ incentive to attend the live lecture even on a normal working day. But that isn’t the only problem. It is also quite possibly illegal.
Having spent some time in the music industry, I have a little knowledge of copyright. That is why I think UK universities are pulling a fast one by claiming ownership of their staff’s recorded lectures. Worse still, academics are letting them get away with it.
Take my own employer’s policy. In an internal communication, the University of Nottingham declares that “all rights in materials created by the lecturer as part of the normal course of their employment, including the content of the lectures and course materials, belong to the university.” At first glance, that would seem to adhere to advice provided by Jisc – the sector-owned digital learning body – which argues that employers (universities) have an automatic right to any material produced by their employees (lecturers) in the course of their employment.
“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,” the guidance states, citing the 1998 Copyright, Design and Patents Act.
The important bit for us, though, begins with the addition that this principle does not apply to sound recordings, and that “where a lecturer makes an audio recording of the lecture for his/her own purposes, the copyright in the sound recording will probably be owned by the lecturer, not the employer”.
That exception may seem odd to some observers and Jisc doesn’t explain it. But the reason that it doesn’t apply to sound recordings is because copyright is mostly designed for the music industry.
In that world, there is a strict division between a copyright (the ownership to the intellectual property of a song – the words and chords – usually owned by a music publisher), mechanical rights (the right to make a sound recording of a copyrighted song and sell it, owned by the record company) and performing rights (the right of the performer over their performance of copyrighted material, which includes both actual live involvement in a production and any recording, film or broadcast of a performance). Hence, Michael Jackson could famously buy the copyright to the Beatles’ back catalogue, but that doesn’t mean he owned every live recording the band ever made.
Similarly, a university can claim copyright to the intellectual property of a lecture (the words and visual materials produced by a lecturer in the course of their employment) but it cannot claim an automatic right to use the performance: the lecture recording. As Jisc notes, a “performer’s rights…although related to copyright, exist quite separately” and “the performer is the first owner of the performance, not the employer”.
This means that an employer cannot claim automatic ownership of performances. As Jisc explains, a performer’s rights “can be licensed or…assigned (transferred) to another party”. But such licences and agreements should be separate documents, rather than being incorporated into employment contracts. An academic job description might involve performing, but that does not mean that our employers own our performing rights.
However, I’ve looked at the publicly available policies at several institutions and have seen no attempt to obtain such permission. Rather, there is typically a policy kindly allowing staff to opt out of automatically giving away their performers’ rights. But this is not the same as asking permission to use performance rights. Look at the University of Leicester’s policy. There is no mention at all of performers’ rights, even in the section named “performance rights”. It just says: “The university owns the intellectual property, including copyright of all recordings.”
My fellow academics, this is highly questionable, if not illegal. We cannot be compelled to grant our performers’ rights to our employer because we are staff. They exist separately from our employment contract and – as Jisc says – cannot be bundled together with it. We own them.
I don’t suppose anyone will object if lecture recordings are used during coronavirus outbreaks. But universities that use them against lecturers’ wishes are turning themselves into bootleggers who would sneak into concerts, record Bob Dylan and then sell the recordings without his permission. The times may be a-changin’ when it comes to edtech, but the law on intellectual property remains the same. It is time to give us our performers’ rights back.
Robert Cluley is an associate professor at Nottingham University Business School.
