How important are Intellectual Property rights in education and how relevant is the 1988 Copyright, Designs and Patents Act (CDPA) to staff and students in the UK?
Anarchy in the CDPA You wish to use someone else’s scribbling. This can cause a copyright headache. The chase begins with the hunt for the author and/or the publisher, then finding out between them (if they know) whether there was an assignment, whether the copyright belongs to the author’s employer, whether the typography needs to be cleared in reuse, whether there is any third party material, whether there have been any further assignments of rights. When it comes to rights clearance in relation to using video, with its multiple layers of rights, it is easy for the headache to descend into meltdown.
When it comes to rights clearance in relation to using video ... it is easy for the headache to descend into meltdown
In relation to the world of education, there is another approach: all intellectual property is theft, and as such, is to be generally disregarded. Copyright, as a bureaucratic barrier to creativity, is denied – how dare the legal world prevent a mash-up of BAMBI (1942) and HAMBURGER HILL (1987) in the name of art? There are some very good reasons why a mash-up of these two feature films shouldn’t be made, but the hard and fast truth is that law, both now and for the foreseeable future, allows the owners of original creativity to control how the fruits are to be used.
Although anarchy seems like a good academic trait to some, a slight extrapolation from freedom, there are some good reasons too for respect of creativity.
- First, academia should be a creative industry in its own right – so riding roughshod over other’s rights might be a tad hypocritical if one believes in the value of academic creativity.
- Second, and more practically, the rights rug being pulled from underneath the use of a recording atan inopportune moment in the academic calendar is something we’d probably want to avoid.
- Third, too often at JISC Legal we encounter examples such as ‘I’ve created something wonderful. Isit okay rights-wise if I keep it under wraps?’ Sorting out rights clearance means reuse with certainty and confidence.
- Fourth, general disrespect for copyright is not going to endear yourselves to those creating original material. At the moment, we have some blanket licences and model licences which are, at best, very useful – UK further and higher education could probably do with more of them. Being the copyright classroom pet might be the way to persuade producers to move in the right direction.
- Fifth, academia should consider leading by example. A group of e-marketing graduates were recently unleashed on employers, only for the employers to cringe when they found those new recruits happily right-clicking anything that moved on the Internet – not the best idea in the commercial world. Yet, it appears, that is the habit they had learned at college.
- Sixth, you might get sued.
Copyright in one paragraph So, how do you tackle rights clearance for academic use of film and video? I sometimes get the feeling that everyone is waiting for me to reveal a hitherto undiscovered section of the Copyright, Designs and Patents Act 1988 that fixes everything. Unless someone has removed a page of my statute book, that is not going to happen. So the truth is this: if it is yours, go ahead. If you can make it yours, get it, then go ahead. If it is not yours, get permission or live dangerously. Consider statutory exceptions, but don’t get over-excited by the possibilities.
What we want (what we really, really want) First, we need some technical assistance. A Google search for ‘Spice Girls’ will bring back plenty of hits, but what I want (what I really, really want), might be links to video I could include in a non-commercial, educational, acknowledged reuse – and that sort of information/search combination might be difficult to find.
Going back to the issue of setting a good example, we should also ensure that, where appropriate, the video being produced in academia is (in rights terms) capable of being reused as widely as we think fit. So, a quick fix to recording lectures is to ignore the rights issues involved, and keep below the parapet. However, that denies the world a valuable resource. The open education resources movement is growing, and one clear message is that materials with potential rights difficulties aren’t ‘open’ from the users’ perspective. Laborious though it may be, sorting out the rights ownership issues, the presenter’s rights, any third party rights, performance rights and moral rights makes the world a slightly more colourful place for the future.
Attitude, awareness, assistance So, what’s the answer? Attitude, awareness, assistance. First, universities and colleges need to entrench respect for creative rights, and the value of certainty in compliance. In addition to this, someone needs to have the institution’s backing in taking risk decisions when it comes to the grey areas. Second, those reusing other people’s stuff have to understand the rights situation, and know when they’ve an issue to sort out. Third, the institution has to make sure that it has the right scaffolding of training, assistance, budget, and rights clearance support to make things happen.
For some institutions, it may be possible to live without other people’s stuff, to avoid the complexities of clearance. The downside might be reinvention of the wheel (turning down a good wheel for a crooked one, indeed), and inefficiency. A second approach might be to constrain use of video (and other materials) to those which clearly have no intellectual property issues (either through the institution’s ownership of them, or through a blanket or open licence). A third approach is to wait for the law to change, but whatever legislative palliatives pop-up, the basic own-or-clear principle is going to be with us for a long time to come.
And just when you thought you’d cracked the intellectual property nut, there are other legal issues that need some consideration too. Films containing information about a living, identifiable, person may raise data protection issues. The use of film and video in the provision of education (and other services) brings with it duties not to discriminate on the grounds of disability, and with its multisensory nature, adjustments might be appropriate more frequently. And as with any other content, thought needs to be given to liability – are you sure that chemistry experiment demonstrated via YouTube by your lecturer is really safe to do home, as he claims?
Please release me, let me go (use your video)
Back to rights, I am a simple sort of guy, and I am always looking for a straightforward solution. Repealing the odd international convention and changing the entire nature of copyright law are on some people’s wish list. It isn’t going to happen soon, I’ll tell you. More sensibly, we can encourage film and video makers to consider how they want the fruits of the
ir labour reused in future, and invite them to use licensing which suits. Many of those stuck behind cameras would be flattered to have to have their work reused, or simply don’t care. A dial on the camera with ‘Creative Commons’ licence settings (as well as an ‘All rights reserved’ setting, of course), with the setting recorded in the metadata, would be a welcome addition.
In the meantime, certainty comes with ownership and clearance – accept and embrace that, and when it comes to good, effective use of the moving image in education, you’ll know your rights from your wrongs.
To download JISC Legal’s detailed guide on the legal considerations of recording lectures, including their model release form, visit: www.jisclegal.ac.uk/
Jason Miles-Campbell Service Manager at JISC Legal firstname.lastname@example.org