Who Owns Captured Lectures?

Universities can use most recorded lectures for free, but in some cases payment may be required, distribution restricted, or permissions required.

• By Keith Norbury
• 11/27/12

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Lecture capture technology has advanced to a point where implementing a solution can be disarmingly simple. But it's important for faculty and administrators not to be lulled into a false sense of security--recording faculty and guest lectures still comes with its share of legal issues covering copyright, intellectual property rights, distribution, and permissions. While some lecture capture technology provides assistance even in these areas, colleges and universities need to develop clearly defined guidelines on how recorded lectures can be used.

First and foremost, any guidelines must address faculty concerns about intellectual property rights. After all, instructors are the stars of the show--for the most part, it's their lectures and classes that are being recorded. With the increasing use of lecture capture on campuses, most--but not all--faculty have come to accept it as part of the landscape of their jobs.

This evolution in faculty thinking has been witnessed by Sean Brown, vice president of education with Sonic Foundry, maker of the Mediasite lecture capture platform. When lecture capture first became popular nearly a decade ago, he says, intellectual property rights were central to faculty worries about the technology. "It's not that it's not a question [now]," explains Brown. "In 2004, it was the only question."

Restricted Distribution
As long as recorded lectures are available only to students enrolled in a specific course, most of the faculty concerns--and legal issues--fall away. Schools today typically set up their lecture capture systems to permit course-by-course segmentation. Athens State University (AL), for example, uses Tegrity Campus, a cloud-based lecture capture system that integrates with its learning management system, to control access. "Our students log in through the LMS, and there's real-time integration between the LMS and the lecture capture system," explains Michael Gibson, director of academic support and instructional systems. "So they're authenticated automatically when they watch the videos."

The ability to restrict access to captured lectures also resolves many copyright issues. In their lectures, faculty utilize images, video, and works from a wide array of sources, each with its own copyright considerations. But as long as the captured lectures are restricted to students in that particular class, there should be no problem. The "fair use" provision of the Copyright Act of 1976 allows copying by teachers or students of a small part of a work to illustrate a lesson.

If captured lectures are disseminated more widely, though, schools should be prepared to seek copyright permission. Permission can be obtained, for example, by paying the appropriate fee to a clearinghouse. The Tegrity lecture capture product actually encourages copyright compliance: Faculty members can publish their recorded lectures on the internet, but only after they check a box indicating that they understand the copyright issues involved.

Deciding which uses might run foul of copyright law is not always easy, though. For example, the slides provided by publishers with their course materials are typically copyrighted. Yet publishers will often let instructors have free access to them because they help promote adoption of the textbooks by other educators, says Isaac Segal, president of Tegrity, whose company was bought in 2010 by McGraw-Hill.

Not everyone is willing to risk an infringement, though. Bobbi Jo Carter, distance learning coordinator at Calhoun Community College (AL), is very conservative about allowing copyrighted material in captured lectures. She once removed a professional-quality YouTube video from a recorded lecture of an anatomy and physiology class, preferring to tell students where they could find it on the web.

"There are certain areas where there's a little more leeway," notes Carter. "But because those lines are sometimes so fine, I try to stay clear of them altogether."

Lectures Outside Class
If lectures are disseminated outside the confines of a class, the legal issues may extend beyond copyright. In the eyes of some faculty, lectures are their intellectual property and should not be distributed more widely without their permission. Indeed, some instructors believe their lectures have monetary value, says Segal, "but, to be accurate, I saw that mostly with instructors in institutions in the early days." It's a position that Segal also rejects outright. "In my humble opinion, nobody wants to watch these lectures the day after the final test."

Chris Brooks, a Ph.D. student in computer science at the University of Saskatchewan who has studied the use of lecture capture in higher education, thinks it would be a mistake to ascribe faculty concerns just to money. "A lot of faculty aren't interested in recording their lectures to make money off them," he explains, "but they are interested in getting credit for being an expert in the field."

His university uses Opencast Matterhorn, an open source lecture capture system developed by 13 universities in North America and Europe. Like Tegrity Campus and Mediasite, Matterhorn supports putting the content behind a sign-in function. However, about a third of schools using Matterhorn are open-content institutions that make their lectures freely available on the web. Who owns the intellectual property rights in these situations?

It's a question, Brooks says, that arises during informal discussions with faculty. Indeed, the very definition of a lecture is sometimes debated. "One of the questions that comes up is performance rights," he notes. "Is giving a lecture the creation of content or is it the creation of a performance, like a band giving a presentation or a show?" In his view, the answer to that question could have significant implications. Academic content in higher education is often covered by collective agreements, he notes, whereas a public performance is covered by different laws and not subject to the same collective agreements.

While such questions are purely academic at this point, the debate does illustrate the uncertainty surrounding intellectual property rights in higher education. To provide clarity, some schools have implemented policies to ensure that they can utilize recorded lectures as they see fit. At the University of Minnesota Carlson School of Management, for example, instructors in the school's executive MBA program are required by contract to allow lecture capture of their classes.

In Alabama, the use of captured lectures falls under the State Board of Education's intellectual property policy. "Basically, what the policy says is that any materials created using our resources belong to us," explains Carter. "The professors are under contract, so we own their time."

Such an approach may sound more draconian than it really it is, because attitudes toward intellectual property have softened in the internet era. "People have really changed their thought processes regarding intellectual property and their willingness to share their information," notes Carter. "They used to covet their information; they would hoard their information. It was a teacher-centered instructional model. Now people across the country have moved away from that model, and there's much more student-centered facilitation of learning."