July 2010 Recording Lectures: Legal Considerations

Please Note: This guidance is for information only and is not intended
to replace legal advice when faced with a risk decision.
Table of Contents
Key Points................................................................................................................................................. 2
1. Introduction ......................................................................................................................................... 3
2. Rights in a Recording............................................................................................................................ 3
2.1 Employee Rights............................................................................................................................. 3
2.2 Performer’s Rights ......................................................................................................................... 4
2.3 Moral Rights ................................................................................................................................... 6
2.4 Third Party Rights ........................................................................................................................... 6
2.5 Privacy Rights and Data Protection................................................................................................ 9
3. Accessibility Duties............................................................................................................................... 9
4. Liability ............................................................................................................................................... 10
5. Summary ............................................................................................................................................ 10
6. Further Information ........................................................................................................................... 11
Appendix One: Flow Chart of the Legal Issues....................................................................................... 12
Appendix Two: Model Consent Form .................................................................................................... 13

Key Points

• In legal terms, copyright will be the most significant issue for institutions to consider
when recording lectures.

• Where materials are produced by an employee (lecturer) working within the course of
their employment, copyright is generally owned by the employer (college or university)
and permission is not then required to include those works in a lecture recording.

• Subject to certain limited exceptions, where materials are created by non employees
(students, third parties) an institution will generally require permission, or a licence
from the copyright owner to include them in a lecture recording.

• Institutions require the consent of performers (including employees) in order to record,

copy, or make available a performance.

• Written consent should be obtained from any individual who is the focus of a recorded
lecture in order to process his/her personal data fairly. This is likely to include the
lecturer and other active participants. All attendees should know that a recording is
taking place, the purpose of the recording and to whom it will be made available, with
an opt-out provided.

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1. Introduction

Recording lectures provides institutions with useful learning resources and enables learners to access
content on demand. This has obvious advantages for distance learning, revision, and re-use of
materials. With corresponding advances in technology, this practice is becoming increasingly popular
with many lectures now being stored on institutions’ servers.

This paper considers the legal issues which may arise in relation to recording and storing lectures for
UK further and higher education. To fully realise the benefits and comply with the law, an institution
must consider the rights of all relevant parties including students, staff and external parties, whose
works, participation and content may appear within an audio or video recording. All rights in the
lecture will require to be cleared prior to a recording taking place.

Copyright and data protection law will be relevant where lectures are being recorded. A variety of
works are protected under copyright law, including: text, film, sound recordings, scripts, musical
compositions, photographs, blogs, diagrams and still images. A recording is also a copyright work in
its own right. The relevant legislation for copyright is the Copyright, Designs and Patents Act 1988
(CDPA) which provides certain exclusive rights to copyright owners, including the right to copy,
communicate, distribute, perform and adapt their works. Data protection law is applicable where
personal data is being processed i.e. where a recording is being made of identifiable living
individuals. Any processing of personal data must be done in line with the Data Protection Act 1998.
For more information on copyright and data protection generally, and their relevance in further and
higher education, please refer to the JISC Legal website.

2. Rights in a Recording

In order to clarify what rights require to be cleared in any recording of a lecture, institutions must
think about a number of legal issues. We shall examine these now.

2.1 Employee Rights

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) of CDPA).

Accordingly, where materials are created by the lecturer (employee) working within their course of
employment, and there is no agreement that states otherwise, the institution will own copyright in
the works and copyright permission will not be required to include those works in a recording.

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Example: A lecturer writes his lecture notes and reads from them in
the lecture. He also includes an extract from a piece he wrote about
volcanoes for a previous assessment. The employer will own the
copyright in the script, and the material on volcanoes, unless there is
an agreement in place stating otherwise. This material can therefore
be included in a recording without permission.

Example: An English lecturer is on holiday in Majorca. His hobby is

photography and he takes many photographs of different sunsets. He
includes one of these photographs to illustrate a Keats poem that he
recites in a lecture. In this case, the copyright in the photograph is
probably owned by the lecturer as it was not taken in the course of his
employment, and permission will be required to include it in a
recording.

Section 11(2) does not, however, apply to sound recordings. So, where a lecturer makes an audio
recording of their own session, they will own the copyright in the sound recording, not the employer,
and the institution will require the lecturer’s permission to make further use of it.

2.2 Performer’s Rights

Part II of the CDPA also provides for performer’s rights which, although related to copyright, exist
quite separately. The performer is the first owner of the performance, not the employer.

Performer’s rights last for 50 years from the end of the year of the performance, unless the recording
is released, in which case it is 50 years from the year of release. The extension of this period was
considered by the Gowers’ Review but was subsequently rejected. The 50 year period currently
remains the legal position.

Performers have rights in their performance and any recording, film or broadcast of that
performance. A performer’s rights are infringed where a recording of a substantial part of a
performance is made without consent (s.182 CDPA), where a copy of that recording is made without
consent (s.182A CDPA) or where copies of that performance are issued to the public without consent
(s.182B CDPA). The performance right is unique to that particular performance and it is a property
right that can be dealt with in the same way as any other intellectual property rights; it can be
licensed or it can be assigned (transferred) to another party e.g. the institution.

There is no definition of a ‘performer’ in the legislation, but there is a definition of what constitutes a
‘performance’. This is defined in s.180 (2) of the CDPA as a dramatic or musical performance, a
reading or recitation of a literary work, a performance of a variety act or any similar presentation.

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The performance must be live but it need not be a public performance as such; an audience is not
required.

Although lectures are not expressly mentioned within the legislation, it is arguable that a live
delivery, a dramatic communication to others of opinions, thoughts and interpretation would be
covered by the definition of ‘performance’.
In order to avoid any possible risk of infringement and possible action by a ‘performer’, the
institution should consider performer’s rights carefully. Ultimately, it is a risk decision for a college or
university as to whether performer’s rights will be assumed to apply to everyday lectures, although it
appears that more institutions are now taking the decision to include performance rights as part of
their model consent forms, ensuring that they are licensed or assigned in favour of the institution.

Example: A lecture is delivered by an employee and it is recorded. The

institution is aware that they will own the copyright in any script or
materials created by their employee working in the course of their
employment. However, the institution is concerned about
performance rights and seeks consent of each individual performer as
part of a standard model release form. In this way the institution has
certainty that the recording can subsequently be made available
without any potential infringement of performance rights.

It is important therefore, that institutions clarify the situation through a contractual agreement or
licence with all ‘performers’. An institution intending to record a performance, or a substantial part
of it, may choose to request that performer’s rights are either assigned in favour of the college or
university, or have those rights licensed to it. In drafting a licence agreement, a college or university
should ensure that any permission extends to the intended future use of the recording.

Example: A guest speaker delivers an inspiring lecture, including an

animated recitation of a Samuel Taylor Coleridge poem. Many
students are unable to attend but are assured the lecture will be
recorded and made available. All materials were created by the
speaker and the institution has a licence that allows the recording to
be placed on the VLE. The resource is extremely popular, so much so
that the college wishes to make it openly accessible on the Internet as
part of a series of resources. However, they have not addressed the
guest speaker’s performance rights at all. The speaker contacts the
institution telling them to remove the resource unless he receives an
annual fee. To prevent any negative publicity of a potential claim,
although costly, the institution agrees to pay up.

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It is also conceivable that there may be other parties interacting in the recorded lecture. In a lively
debate, for example, there is likely to be active student participation. In that case, each contributor
may own rights in their individual ‘performance’ and consent will be required from all parties
regarding the recording and further use of the performances. There is no requirement of originality
so each separate performance of the same work would have performance rights, although there may
be some argument with regard to insubstantiality. By addressing this as part of the general consent
form, an institution will have ensured this issue does not become actionable by the rights owner and
is not therefore a barrier to the recordings being subsequently available.

2.3 Moral Rights

For employees, moral rights (the right to be identified as the author of a copyright work and the right
to object to any derogatory treatment of the work) do not apply in copyright terms, to works created
as part of their employment. Employees cannot object to subsequent treatment of those works.
However, where asserted, moral rights will apply to an employee’s performance (s.205C and s.205F
CDPA) and an institution will be bound by them. An assertion is an indication that an individual
wishes to exercise that right and is generally written and signed.

Non employees, including students and guest speakers, may choose to assert their moral rights in
any works created, or performances carried out, by them.

Where an action for infringement of the right to be identified as the performer arises, a court will
take into account any delay in asserting that right when considering remedies for infringement
(s.205D(4) CDPA). So, where a dispute arises, any awarded damages are likely to be mitigated where
a lecturer or other ‘performer’ has chosen not to assert this right as soon as possible.

In order to avoid the potential enforcement of moral rights in any materials or performances, an
institution should therefore consider requiring all relevant parties to sign a waiver of their moral
rights, in writing, prior to a recording being carried out. It would seem preferable from an
institution’s point of view that any signed waiver is written in broad terms and not subject to
revocation.

2.4 Third Party Rights

Where the copyright period has expired in a work, it can be included freely by a college or university
in a lecture recording. However, in many instances the period of copyright has not expired and,
unless the works are produced in the course of employment, they are likely to require permission
from the copyright owner(s), or a licensing agreement that extends to materials being published
online.

Subject to those specific exceptions discussed in 2.4.1. below, the permitted acts and exceptions
contained in the CDPA are unlikely to apply where further copying and storing is being carried out.

Example: A lecturer instructs students on Spanish culture and shows

part of the film ‘Abre Los Ojos’ to students on the course, on the

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institution’s premises, without fear of infringing copyright as this is a
permitted act under s.34 (performing, playing or showing a work in
the course of activities of an educational establishment). The position
is different, however, where the lecture, including the film is then
recorded and stored on the VLE. This is because a copy is being made
and this is an exclusive right of the copyright holder(s). Without
permission, this is likely to be an infringement.

There may also be licensing agreements in place between the institution and third parties in order to
make further use of materials. All terms of these agreements should be checked to see how those
works may be used. It is very likely that any material licensed for the purposes of delivering a live
lecture will require further permission in order to publish it on an openly accessible website.
Currently, no blanket licence is available for institutions that would permit such use.

Where the audience is appropriately restricted, the Copyright Licensing Agency (CLA) Basic and
Comprehensive HE licences do allow universities to scan extracts of text and still images from
included published original works, subject to the usual terms and conditions (limits as to the extent
that may be copied, appropriate acknowledgment, sufficient reporting, and secure access only to
students on a particular course of study). CLA has confirmed to JISC Legal that, under this licence,
universities may also include permitted scanned materials (e.g. an image from an included work in a
PowerPoint presentation) in a lecture and record it, providing the same conditions are adhered to.
Such a recording may only be made available to the same group of students to whom the lecture was
originally presented and stored copies are restricted to the duration of the licence. If the lecture is
stored beyond the end of an academic year, the scanned material must be reported again to CLA,
and for every subsequent year. Where a university holds CLA’s Comprehensive Digital Licence, the
same will apply to digital holdings of included publishers, as well as the standard Basic repertoire.

For FE institutions, the position is similar except that scanning is restricted to UK publications only,
and no manipulation of a work may take place. So, under the CLA FE licence, an image could not be
disembodied from a piece of text and scanned into a lecture that is then recorded. However, an
extract from a UK published included work could be included without further permission.

In all cases, any use of included works should, of course, be reported to CLA under the terms and
conditions of your CLA licence.

If you have any questions regarding this, please contact CLA for further advice at: www.cla.co.uk.

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Example: A university subscribes to the CLA Basic HE licence. A
lecturer scans a short extract of an included work into a PowerPoint
presentation, which is then recorded as part of the lecture. The
university wishes to make it available to students. On checking the
licence agreement, the terms state that the work may be accessible,
including digital copies, to full time students on a specific course.
So, as long as the recorded lecture is password protected and available
to those particular students only, appropriate acknowledgement is
given and the relevant details are recorded and reported, the
materials can lawfully be included. Any other non-licensed use of the
materials (e.g. to place the recording on an open website) will require
permission from the copyright owner.

2.4.1. Exceptions

There are certain restricted and narrowly interpreted exceptions where third party works may be
lawfully included in a recording without permission or a licence. These situations arise where
materials are included for the specific purpose of criticism or review, or where those making or
accessing the recording are visually impaired.

Fair dealing for the purposes of for criticism or review is permitted by virtue of s.30 of the CDPA. In
order to satisfy s.30, a work has to have been published, sufficient acknowledgement provided and
the ‘fairness’ test satisfied. What is ‘fair’ is likely to be interpreted by the courts as a matter of
degree. Including an entire literary work when a short extract would be enough is unlikely to be
considered ‘fair’, whereas including a short quotation for the express purposes of a review, is more
likely to be deemed ‘fair’. The purpose for including the work must be clear. A work is not criticised
or reviewed where it is explained, or where it is simply reproduced in a different form. Equally,
where works are used to enhance the resource or are used for illustrative purposes only, this is
unlikely to satisfy the s.30 exception.

In relation to visually impaired persons accessing or making recordings, s.31A-F of the CDPA provides
an exception to copyright infringement. In brief, 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.

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. It does not include other disabilities. The exception applies to literary,
dramatic, musical or artistic works only. The institution, or the visually impaired person, must have
lawful possession, or use, of an original copyright work with no commercially accessible version
already available and provide sufficient acknowledgement of the work to be copied.

So, subject to certain conditions as stated above, providing lecture content for visually impaired

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students, including third party works, in an alternative format (e.g. video or audio recording) is likely
to satisfy the definition of an ‘accessible copy’ and will not, therefore, be an infringement of
copyright. Other rights relevant to lecture recordings will, of course, still apply.

More information on accessibility and copyright can be accessed at:

http://www.jisclegal.ac.uk/AccessibilityLaw.aspx.

In conclusion, subject to the specific exceptions described in 2.4.1. above, where copyright protected
third party works are included in a recorded lecture, the institution should generally have express
permission or a licence from the copyright owner. Otherwise, the institution risks the copyright
owner suing for infringement. To avoid this risk, all third party content must be removed and
students should instead be referred to the resource so they can access it themselves under the
provisions of fair dealing.

2.5 Privacy Rights and Data Protection

Data protection is likely to be relevant where lectures are being recorded. The Data Protection Act
1998 allows individuals to control how information about them is to be used. By recording
identifiable living individuals, the institution is processing their personal data. Any processing must
be done fairly and in line with the data protection principles. Consent is likely to be required in order
to process their personal information, or at least an opt-out provided.

This may take the form of a statement made by the lecturer that a recording is taking place,
explaining the purpose for the recording and to whom it will be disclosed or made available. Where
there is likely to be a significant contribution or presentation by another party, a signed consent form
for that party prior to the recording may be preferable.

Where an individual does not provide consent, the data cannot be lawfully processed. Consequently,
institutions may wish to make provision for a specified area where recording will not take place.

3. Accessibility

Accessible lecture recordings are likely to be of benefit to all learners, in addition to meeting the
needs of those with disabilities. Ensuring accessibility is therefore another important consideration
for institutions. As a provider of educational services, the Disability Equality Duty and the duty to
make reasonable adjustments under the Disability Discrimination Act 1995 will apply. This is
particularly relevant for all core teaching and learning material, which is very likely to include
recordings of lectures.

Reasonable adjustments often include the provision of alternative formats e.g. a transcript of the
lecture and/or provision of subtitles. However, the law does not give a black-and-white test as to
what adjustments must be available, and in each case, a judgment will have to be made according to
practicality, appropriateness, the intended audience and the overall resources of the institution.

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Factors such as the availability of equal quality alternatives, the purpose of the materials and
whether that particular adjustment would be suitable for the desired learning outcomes will be
relevant for the institution in considering whether, and how, to provide that alternative format.
Supplying a transcript of a conversation in Spanish, for example, is clearly not an appropriate
adjustment where the learning objective is to listen to the recording and reproduce the dialogue.

In essence, institutions have a legal duty to consider what anticipatory adjustments would be
appropriate in order to achieve a more inclusive approach, where learners with disabilities can have
a substantially similar learning experience. If this can be achieved without a transcript and/or
subtitles then they need not be provided, although many institutions do so as a matter of course. On
the other hand, where the learning experience does not allow equality, and a reasonable alternative
is not made available, the institution is unlikely to meet their legal duty.

One way forward might be to consult a selection of learners for feedback on accessibility of
recordings, and where possible, provide appropriate alternative formats. Many institutions already
provide an option for learners and other users to report any difficulty in accessing materials, either
embedded on the resource itself or on their websites. This benefits both the learners in accessing
the content, and the college or university in actively promoting and highlighting issues of
accessibility.

4. Liability

Liability may also be an issue for a college or university in recording lectures. This refers to the
liability of the institution for content recorded and published. Where a lecturer, for example,
infringes copyright or clearly endorses or advises on a particular matter negligently, this may lead to
an action against the institution for damages. There are also risks where a lecturer makes particular
inappropriate comments. This may attract liability for an institution where, for example, a
defamatory remark is made about another individual. The institution, in making the recording
available, by publishing it, may be liable for defamation and damages.

An institution may decide to include a disclaimer of liability for all content published. It is
debateable, however, how effective such clauses will be in practice. The key issue in all cases is the
awareness of the institution. Where there is any knowledge by the institution that defamatory
comments have been made or inaccurate representations or infringing content have been included,
these should be removed immediately. A notice and take down procedure is essential and may
mitigate liability where individuals can easily contact the institution to remedy a situation.

5. Summary
In recording lectures, institutions should think carefully about the implications of copyright and data
protection law. This will include deciding how to tackle inappropriate content, performance rights,
accessibility of the recordings produced, third party materials (where materials are not being
included for the purposes of criticism and review) and the implications of recording identifiable
individuals.

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The most effective way forward, therefore, seems to be where institutions consider these areas in
advance and, where applicable, provide processes that enable them to record lectures without
infringing the rights of others.

Guidelines and a policy on recording lectures will certainly clarify the process for all participants and
make clear the institution’s position and approach. Appendix Two of this paper provides a model
release form that may be adapted by institutions wishing to secure permissions and consent.

The legal considerations should not be seen as insurmountable obstacles to the use and re-use of
lectures. Rather, institutions that take into account the potential issues early on and address them in
full can be confident in the knowledge that the law will not act as a barrier to their subsequent use.

6. Further Information
Further information on areas of law relevant to recording lectures can be found on the JISC Legal
website at www.jisclegal.ac.uk, which also includes information on the JISC Legal enquiry service.

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Appendix One: Flow Chart of the Legal Issues
RECORDING LECTURES

CONTENT

Lecturer
Third Party
Materials
Inappropriate
Content Performance Data
Created Rights Student
Protection
Content
Permission/ s.30 crit or
Licence review/
Disclaimer Consent/ s.31A-E
Consent Created
Notice and Assignment Performance Data visually
Take Down Content Rights Protection impaired
persons

Employee, in Employee, not Non Employee =

course of in course of Permission Permission/ Consent/ Consent/
employment = employment = required Licence Assignment opt-out
No permission Permission
required required

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Appendix Two: Model Consent Form
This Model Consent Form has been adapted from the JISC funded Web2Rights project:
http://www.web2rights.org.uk.

MODEL CONSENT FORM

VENUE………………………………………………………………………………………………..

DATE……………………………………………………………………………………..…………...

CREATOR OF RECORDING………………………………………..………

This form is to be signed by the person who has agreed to be recorded and filmed as the principal
party to, or as part of, a lecture carried out within [insert name of organisation here]. The purpose of
this form is to seek consent for the films and/or recordings to be taken and subsequently to be used
in a number of media, including the intranet/web by [insert name of organisation here]. [Insert
name of organisation here] in turn offers a commitment to only allow said recordings to be used
appropriately and sensitively.

(LECTURER)
I, the undersigned, agree to my lecture being recorded in video format by [insert name of the
organisation]. Where a recording is being made, I will notify everyone present that a recording is
being made.

I confirm that where material is included in the recording which is the intellectual property, including
copyright, of another party, I have permission to include the materials in my lecture for [insert
details] purposes.

I understand that any copyright or other intellectual property which arises in the recording belongs
to [insert name of the organisation] and that the recording may be used by the [insert name of the
organisation] for the purposes of [insert details]. This may include conversion to digital format and
storing and publication on [insert details].

I, the undersigned, do hereby agree to license/assign all performance rights in the film and/or
recordings of lectures to [Insert name of organisation here].

I, the undersigned, do hereby agree to waive all moral rights in my performance in the film and/or
recordings of lectures to [Insert name of organisation here].

I, the undersigned, consent to the use of my personal data being processed for the purposes of this
recording and subsequent publishing. My personal data will be processed in accordance with the
provisions of the data Protection Act 1998. I understand that my image and/or recordings will be
used for [insert details] purposes only and that copyright in the recordings will be retained by [insert
name of the organisation].

(ADDITIONAL CONSIDERATIONS - STUDENTS/NON EMPLOYEES)

In order to make it clear to all students and other parties attending the lecture that a recording is
taking place and to allow them the opportunity to opt out of the recording, the lecturer may/will

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provide the following statement:

This lecture is being recorded in video format by [insert name of the organization]. The recording
may be used by [insert name of the organization] for the purposes of [insert details]. This may
include conversion to digital format and storing and publication on [insert details]. Any person who
does not wish to appear in the recording should [insert details].

Where there is likely to be more active participation, actual delivery in the lecture by non employees
or students (e.g. a performance of student work) the institution should consider obtaining additional
consent to that above, such as:

I, the undersigned agree to waive all moral rights in any performance carried out by me and in any
works created by me that are included as part of any lecture at [insert name of the organisation].

I, the undersigned, do hereby grant to [Insert name of organisation here] a licence in perpetuity to
record/film materials created by me that are included within lectures for [insert details] purposes
only.

(GENERAL)
Copyright restrictions placed on [insert name of organisation here] prevent the content being sold or
used by way of trade without the express permission of the copyright holder. Images and recordings
may not be edited, amended or re-used without prior permission from [insert name of project or
organisation here]. Personal details of those taking part are never made available to third parties.

I require/do not require that my name is removed/retained in association with the shots and/or
recordings {please delete as appropriate}

FULL NAME ______________________________________________________________

NAME OF ORGANISATION __________________________________________________

CONTACT TELEPHONE_____________________________________________________

EMAIL ADDRESS __________________________________________________________

SIGNED ___________________________________DATED_________________________

© JISC Legal - www.jisclegal.ac.uk

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