It’s all about the performance

William Barker

With the imminent lifting of student number controls in higher education, predicted by many to create greater competition for students, many universities and colleges are focussing on the quality of the teaching and learning opportunities they offer their students, to create a more vibrant and engaging learning environment.

This has ramifications for the future of that most traditional of university teaching methods,  the lecture, something of an anomaly in a time when students expect to be able to undertake their learning whenever they feel like it and to stop, pause and rewind when they need to recap.  The ability to access lectures remotely rather than attend a lecture theatre also opens up learning possibilities from anywhere in the world. 

Universities and colleges have recognised that new ways of learning are key to staying relevant and competitive.  This will mean that more and more lectures, presentations and teaching events may have to be recorded and made available to students online. This should force serious consideration of intellectual property rights and, in particular, performer’s rights.

In higher education in particular, the ability to attract students often follows the establishment’s ability to attract and retain academic staff with the highest reputation.  Intellectual property rights arising from the creative output of such individuals are often seen by those individuals as their rightful property, and so universities and colleges often struggle to find the balance between controlling the rights in such creative output, and recognising the need to share the fruits and benefits with the employed academic.

The recording of lectures and other instruments of teaching will require institutions to address this balance explicitly, especially in relation to performer’s rights.

Some may question whether a lecture can be said to be a “performance” but conventional legal wisdom is that performer’s rights were intended to cover such things as a lecturer or teacher conveying wisdom to students. 

It is likely that a lecturer will own performer’s rights in the lecture and that will mean that consent will be required to make a recording of the lecture and also to exploit it by copying it, issuing or making copies available to the public or disseminating it by enabling online access.  The lecturer will also have moral rights in the performance which will include the right to be identified and the right to object to derogatory treatment. 

It is particularly important that universities and colleges deal with these rights because a recording made without the consent of a performer will be an illicit recording and dealing in illicit recordings is a criminal offence.  Furthermore, it is possible for those in office to be criminally liable if the institution commits an offence with their knowledge and consent. 

Typically the sector deals with these rights either through contracts of employment or through intellectual property policies, consent forms or waivers and they should not be shy to tackle performer’s rights head on.  Some policies do not do so.  The wording in these documents, and the mechanism for consent i.e. licence or transfer, will depend on the level of control the institution wants over performances, in terms of exclusivity and exploitation. The institution’s position on this should be established from the outset.

The law also provides for there to be rights to equitable remuneration in certain circumstances, the levels of which will be decided by the Copyright Tribunal in the absence of agreement, including where a commercially published sound recording of a performance is exploited. A prudent institution would be wise to tackle this issue and set the parameters in which equitable remuneration would be payable.  That is likely to make it easier to persuade lecturers that they should give their consent and allow the institution to control the recording of any lecture and its wider dissemination. Intellectual property policies should acknowledge that a lecture is a performance, and recognise the lecturer’s rights in the performance and to equitable remuneration in certain circumstances. 

Most intellectual property rights can only be transferred or licensed by a document in writing.  Although written consent is not required for all performer’s rights, a university or college would be wise to require lecturers to give written consent, however extensive, when signing their contracts of employment. Careful review of the treatment of all intellectual property rights relating to lectures will be needed if institutions are to be able to gain commercially through recording lectures and teaching events and making them widely available, perhaps even on the international stage.

William Barker
Partner 
IP and Technology Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1632
F: 0800 763 1001
International DD: +44 870 763 1632
E: william.barker@sghmartineau.com
W: http://www.sghmartineau.com

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