Universities facing strikes this week should examine their intellectual property (IP) agreements before reusing recorded lectures, according to the Higher Education Policy Institute (Hepi).
The think tank points out, in a new report published today, that unlike in previous strikes – which took place before the Covid-19 pandemic forced teaching online – universities now have “an unprecedented wealth of online teaching materials” to help ensure continuity of teaching for students. Yet confusion remains over whether it is lecturers or their employers that own this recorded material, and therefore have the right to disseminate it.
The report – ‘Who owns online lecture recordings? (Hepi Policy Note 32)’, by Dr Alexis Brown – draws on the expertise of four IP specialists: Professor Sir Robin Jacob (UCL), Dr Matt Fisher (UCL), Professor Justine Pila (University of Oxford) and Professor Andreas Rahmatian (University of Glasgow). UCU’s bargaining and negotiations official, Jenny Lennox, also contributed.
In it, the legal academics assess the current guidance around IP law and recorded teaching material from both Jisc and UCU.
Jisc guidance argues that copyright is generally owned by employers, referring to section 11(2) of the Copyright, Designs and Patents Act 1988 (CDPA), which states that: “Where a literary, dramatic, musical or artistic work … is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.”
By contrast, the UCU’s guidance broadly favours the rights of lecturers and highlights concerns around General Data Protection Regulation (GDPR).
The UCU is currently in dispute with the the University of Exeter, over the provider’s new performance rights policy, which, the union claims, retains control over lecturers’ recorded material for five years. Exeter UCU wants an initial licensing period of no longer than one academic year or until the end of resits, which can then be extended annually with the consent of the lecturer(s).
“Universities should think twice before considering reusing old lecture recordings to reduce the impact of the latest wave of strikes,” says the report’s author Dr Alexis Brown, who is director of policy and advocacy at Hepi.
“Depending on what was agreed when the lectures were first recorded and their institutional IP policy, it may not be legal for them to do so.
“More broadly, this topic clearly needs more discussion among university staff – many of whom may not know what their institution’s policy is. Given the way the pandemic accelerated online learning in universities, universities may also now need to re-evaluate whether their IP policies are still fit for purpose.
“It would be in everyone’s interests, including the interests of students, to ensure that these policies are developed collaboratively and iteratively as more teaching is delivered digitally. Students would benefit from a greater culture of trust between academics and university management on this issue.”
Today’s report recommends that:
- University management and lecturers should be explicit about when and for what purposes any teaching materials may be used, ideally in writing.
- University IP policies should be developed iteratively and in collaboration with both staff and students to ensure that these policies reflect the needs of all involved. Because of the increased breadth of online materials created throughout the pandemic, and the increasing prevalence of online teaching more generally, universities without explicit IP policies should develop them, and those who have policies already should revisit their policies to consider whether they are still fit for purpose.
- Lecturers should familiarise themselves with their university’s existing IP policies. Lecturers who are concerned or unclear about how their materials could be used may consider drawing more explicitly on their research in their lectures to strengthen their IP claim over these teaching materials, as many university policies waive IP claims over research outputs produced by staff. Lecturers may also consider removing access to their materials from virtual learning environments at the end of term to hinder their reuse.
Strikes over pensions, pay and conditions are taking place at 58 universities from 1 December to 3 December.
You might also like: Lecturers must own copyrights of recorded lectures, UCU says