Why Academic Staff Should Fight for the Right to Delete their Recorded Lectures
In response to the COVID-19 crisis, recorded lectures have been swiftly instituted in universities around the world, often with little, if any, consultation with lecturers themselves…
The coronavirus crisis is impacting all aspects of higher education. In preparation for the forthcoming academic year, many universities are now asking their staff to record lectures live or in advance, with the aim of providing ‘hybrid’ and socially distanced teaching. The strategy at most universities is for live or pre-recorded lectures to be uploaded to the institution’s e-learning management system (Canvas, Moodle, Blackboard, etc.) so that they can be streamed off-campus and ‘on demand’ by students. This raises important questions about the ownership and use of materials developed and delivered by lecturers.
This ‘Netflixisation’ of academia began long before the COVID-19 crisis, with many universities already making use of recorded lectures as part of their teaching provision. Lecture recording technologies like the ‘ReCap’ system (provided by the ominously named software company Panopto) are increasingly infiltrating classrooms. Such technologies enable universities to develop digital libraries of lectures that can be used as future teaching tools. While these recorded lectures certainly provide valuable opportunities to students who may have missed classes, as well as vulnerable students or those with accessibility needs, the practice of using recorded lectures as learning tools has myriad implications for the future of higher education. Such systems could lead to a decline in student attendance, affecting opportunities for in-classroom dialogue, shared learning experiences and the development of cohort social capital and community-building. They may enable for the clandestine monitoring and evaluating of ‘teaching quality’. Previously recorded lectures could also be used to circumvent strike action. During the pension strikes in 2018, the Edinburgh Law School (part of the University of Edinburgh) attempted to re-run previously recorded lectures to ensure that teaching was not disrupted — thus undermining the strike. This underhanded action led to a debate between the Law School and the Universities and Colleges Union (UCU) and the National Union of Students. As a result, the University of Edinburgh changed its policy on lecture recordings, becoming the first UK university to explicitly ban the re-running of previously recorded lectures during industrial action.
Amidst emergency requirements to deliver lectures remotely, the COVID-19 outbreak has accelerated the lecture recording trend. The imperative to pre-record lectures greatly expands workloads, requiring lecturers to reconfigure teaching material into digestible digital formats. Unfortunately, it seems that many institutions are not factoring the time this takes into staff workloads. If anything, academic staff are being tasked with taking on more work on top of digitising their lectures, rather than being given sufficient time (and wages) to properly prepare content for digital delivery. This places considerable pressure on lecturers. It takes time (and training) to learn new tools and often this involves making mistakes and having to re-start digital lectures from scratch. Computers can take a considerable amount of time to render video files and if an error should occur or if the content producer experiences technical difficulties, this will add further hours to the preparation stage. It is clear that impacts on workload are not being considered by the vast majority of HE institutions.
With teaching going online, some commentators have suggested that student course fees should be reduced. Such suggestions are rooted in the assumption that in-person or face-to-face teaching is pedagogically superior to online teaching. In response to claims that universities shouldn’t be charging full fees for remote learning, the universities minister in the UK has stated that ‘We don’t believe students will be entitled to reimbursement if the quality is there’.
The question is whether universities are giving their staff the time and resources to ensure that the quality is there.
For academic staff that have yet to lose their jobs amidst the ongoing redundancies, the imperative to produce engaging online content that doesn’t bore or exhaust students (and thus negatively impact the student satisfaction metrics that govern university management) requires lecturers to transform themselves into digital media content creators. Those that are unable to successfully transition from ‘lecturer’ to ‘YouTuber’ will no doubt be the first on the firing line in the next round of redundancies. The academics who are now working tirelessly to record their lectures ready for release when term starts are also potentially sowing the seeds of their future severance. Indeed, a major concern with recorded lectures is that lecturers effectively write themselves out of their job. Unless they secure the intellectual property rights of their content or negotiate how this content will be used in the future, their institution may decide to simply re-release recorded lectures and lay off those that produced them. The UCU has raised concerns that repositories of recorded lectures stored by universities may facilitate future reductions in teaching staff.
Of course, given the unfolding public health catastrophe (and the financial crisis of the university sector), pre-recorded lectures are valuable tools through which learning and teaching can continue (and with which the university sector may weather the storm). At the same time, universities should ask lecturers individually for their consent to pre-record their lectures. It is UCU policy that any recordings should be voluntary. Some university departments have adopted stringent policies, seemingly invoking emergency powers and informing staff that their lectures and seminars will be filmed with or without their consent. While it should certainly not be compulsory for academics to pre-record their lectures, in the precarious job climate, with many university staff unsure as to whether they will be among the next to be laid off, it can feel like there is little wiggle room to debate this matter. If you are not prepared to pre-record your lectures, you may simply be replaced by someone who is.
It is, however, certainly possible to negotiate the terms and conditions of the recordings you produce. Ownership of teaching materials and lecture recordings is dealt with differently from university to university, based on their respective Intellectual Property policies and adjunct policies that may deal with lecture and other recordings. Policies vary greatly. In some cases a university may own all materials generated by their staff in the course of their employment. In other cases, staff members may own the copyright to the teaching materials they create, but give their institution a licence to use those materials. Others still may only assert copyright in teaching materials when commercialisation enters the picture.
Much of the existing legal guidance in this area primarily addresses the recording of ‘live’ lectures in classrooms and predominantly revolves around ‘performers’ rights’. These are rights related to the recording, copying or distributing of performances by artists and actors (though lecturers may also be considered performers). Essentially, colleges and universities must secure consent from performers (which, along with lecturers, could include other employees and visiting speakers) in order to record, copy, or make a performance available. Performer’s rights last for fifty years from the end of the year of the performance, or if the performance is released as a recording, fifty years from the year of release. Lecturers and their lectures are not expressly mentioned in Chapter 2 of the Copyright, Designs and Patent Act 1988 (CDPA), where performers’ rights are outlined. However, guidance on recording lectures released by JISC (a not-for-profit company who support institutions of higher education and research), 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’. JISC highlight, however, that this is a risk decision: ‘Many colleges and universities appear to include performance rights as part of model consent forms, ensuring they are licensed or assigned in favour of the institution.’
Pre-recorded lectures may be classed as teaching materials. Generally speaking, under UK copyright law, if a lecturer produces teaching materials in the course of their employment, the employer (the college or university) is the first owner of any copyright in the work, unless there is a contract or agreement to the contrary (CDPA], s. 11[2]). This does not apply to audio recordings. As JISC points out in their legal considerations for lecture recordings, the first owner of copyright in a sound recording is usually the producer. However, to avoid risk, this should be specified, clarified and covered in/through a negotiated contractual agreement or licence between the employer (the university), the employee (the lecturer) and, ideally, the trade unions. However, it is unlikely that the majority of pre-recorded lectures produced during (and after) the pandemic will be audio-only, as most will entail an accompanying visual component (e.g. PowerPoint, Prezi, Video, etc., and maybe a video window of the lecturer as they deliver the presentation).
It is also important to bear in mind the nature of your contract. The UCU highlights that, in the context of casualisation, employer ownership of copyright may not apply if a person works under a ‘contract for services’. If you do not have a ‘contract of employment’ you may be considered an independent contractor. Material you produce may then be considered to be commissioned works for which copyright ownership lies with the creator rather than the organisation that commissioned those works.
The UCU have mentioned that it is important that when you are asked to produce pre-recorded lectures that you understand how these will be used, ‘to whom these recordings will be available; and for how long your employer will hold the recordings. It is also crucial that you consent to your employer holding this information on you.’ Jo Grady, the UCU General Secretary, has stated: ‘Moves to record or deliver teaching online in the short term should be voluntary and underpinned with a clear agreement between the union and employers about how material can be used, as well as appropriate technical support.’
In order to avoid risk and confusion, higher education institutions should be clearly specifying to their employees:
Who is understood as the owner of the pre-recorded lectures?
How these lectures will be used (as well as the limitations on the subsequent use and/or re-use of this material), i.e. may they be used as promotional material for marketing events?
How these digitised lectures will be stored, i.e. will they be stored on the institution’s servers or in data centres elsewhere? Which provider owns these data centres and in which country are they located?
Who will have access to such recordings?
How will these lectures be disseminated, i.e. via which e-learning platforms? And do these platforms automatically store a copy in their own data centres?
This list is by no means exhaustive and such agreements should be negotiated and agreed with the trade unions. The UCU further highlight that ‘Where no agreement exists and the terms and conditions of lecture capture are inadequate to protect your rights, members should not sign such terms and should set out clearly that any recordings they make can only be used with their permission and that permission is granted only for the duration of the current crisis’.
Employers need to secure consent if they want to distribute a lecture in which there is an identifiable individual (i.e. if lecturers choose to include a video window of themselves in their content). There are also EU General Data Protection Regulation (GDPR) laws to bear in mind if a lecturer should choose to live-record their classroom sessions. If lecturers are going to be recording and/or streaming their sessions live from socially distanced classrooms where half of the cohort are attending in person and the other half of the cohort are tuning in remotely, then it will be necessary to make sure that any cameras are angled so that they don’t capture students who have not agreed to be recorded.
For any lecturers currently designing digital content for their courses, it would be advisable to review JISC’s legal considerations for releasing your recorded lecture material. You can then include guidance for students on what ways they can use this material, as well as any restrictions on publishing recorded material without your prior consent. You could mark your materials with the ‘©’ symbol, and with the name of the copyright owner and the month and year of its creation/publication. You could also include a copyright warning on the first slide of your pre-recorded lectures.
There are, of course, many reasons beyond those already stated that a lecturer may not want to pre-record their lectures or may want to restrict their employers ability to use or store them for future use. Along with concerns related to data protection and privacy, or other personal reasons (which an employee should not need to state and which should be respected by the institution), another source of concern is the ease with which recorded lectures can be downloaded illicitly (using screen capture software that easily bypasses e-learning platform restrictions and undermines institutional safeguarding measures and data protection/controller duties). This places lecturers in a precarious position whereby the content of their lectures could be edited, taken out of context, or shared on the web.
Our current moment of emergency requires socially distanced teaching for learners. Whether lectures are delivered online or offline, students deserve high-quality and thought-provoking content. The question is whether universities are providing working conditions that are conducive to the development of such content, as higher education institutions shed staff and expect those left behind to take up the slack, leading to dangerously high workloads for those remaining.
As with many crises occurring under conditions of neoliberal capitalism, the emergency of the pandemic is seemingly providing many HE institutions with a convenient scapegoat for implementing temporary measures on a more permanent basis. As William Brown has pointed out, ‘it seems as though higher education will endeavour to use Covid-19 not as an excuse to change its ways, but as a means through which it can intensify its neoliberalisation’.
As it stands, there is an uncomfortable ideological alignment between the public health injunction to eliminate human contact and the promise of edtech companies to remove humans from the loop through the deployment of ‘contactless’ and ‘socially-distant’ solutions. The increasing integration of online teaching and learning services into programme provisions (such as MOOCs [Massive Online Open Courses] and LinkedIn Learning) are pushing a market-orientated HE sector towards increasing digitisation and automation where lecturers are ever-more distant and removed. The remote teaching ‘opportunity’ may yet deliver the holy grail of the neoliberalised academy: lectures without lecturers.
Useful Resources:
UCU guidance on recording lectures can be found here: https://mmu.web.ucu.org.uk/ucu-guidance-on-recording-and-filming-lectures/
JISC’s information on legal considerations for recording lectures (e.g. issues of copyright and third party rights) can be found here: https://www.jisc.ac.uk/guides/recording-lectures-legal-considerations
For more details on Intellectual Property (IP), see the UK Government’s Intellectual Property Office website: http://www.ipo.gov.uk/types/copy/c-ownership/c-commissioned.htm
Emanuela Vai is a Fellow at Worcester College, University of Oxford. She works at the intersection of art history, architectural history, musicology and the digital humanities. She champions the public engagement of academic research, working across a diversity of cultural heritage and digital humanities projects, with the aim of building and improving partnerships between academia, policy and industry for the study and preservation of tangible and intangible culture. She is the Humanities Voice Representative for the Oxford Research Staff Society. Her Twitter is @dremanulevai
