Lockdown 3 has seen once again universities, colleges and schools close to the majority of students creating a ‘new abnormal’ where they have been forced to move their lessons online.
As a result of the situation, some interesting legal implications have come to light surrounding the interaction between the various disciplines of data protection law, intellectual property law and employment law. This has provided food for thought for lawyers and FE/HE and school management teams alike.
Some teaching unions are also alive to these issues and are requesting that institutions agree on a policy to allow their members to provide teaching online. Some employees are also arguing that their consent is needed before allowing a school to use their ‘image’; and then there is the question of whether students also need to provide consent.
But what are the main issues? This Q&A looks at practical tips on how to navigate providing lessons online as well as a handy checklist to navigate this tricky area.
Is providing lessons online a change to teachers’ or lecturers’ terms and conditions of employment?
Fundamentally, a teacher or lecturer is required to teach and the pandemic has not changed that. What might have changed however is the medium of that teaching. The question has been posed as to whether a change of teaching method from face to face to ‘virtual’ is a change to terms and conditions of employment. This is very unlikely. There may be a change to a member of staff’s working location depending on the drafting of the contract of employment, but a change in the format of the provision of teaching or lectures is unlikely to be a change requiring consultation and agreement. Schools and institutions should however check staff contracts of employment to ascertain if any changes to contracts to account for teaching or lecturing online is necessary.
Are teachers, lecturers or pupils performers?
Many teachers and lecturers may consider themselves to be performers and legislation under the Copyright Designs and Patent’s Act 1988 (“CDPA”) which was originally implemented to, amongst other things, combat pirating might apply. The CDPA defines what a ‘performance’ is and arguably, a teacher or lecturer teaching online is a performance. And if a student takes part, then they could also be performing. This has not yet been tested in the courts, but the CDPA has some potentially heavyweight sanctions, so schools, colleges and universities should be aware of this particular piece of law and mitigate against the risk of falling foul of it.
This means that essentially, the consent of the performer (teacher or lecturer) and, in some cases, the student, will be required for the following:
(a) for their ‘performance’ to be recorded; and
(b) for various dealings in copies of the recording of the ‘performance’, including making it available to students.
A performer will also have moral rights in their performance, including the right to be named and to object to derogatory treatment of their performance.
Consent under the CDPA can be written or oral, express or implied, limited or unlimited in scope. Ultimately, however, the question will be whether, viewed objectively, the teacher, lecturer, or pupils, consented to what the institution was doing.
The ideal position would be to obtain specific written consent from each individual giving the school/college/university the right to record the lesson or lecture and make the recording available to students. This can be done by asking staff to sign a form providing their consent. In the case of students, it may be easier to rely on implied consent provided students are aware that the lesson will be recorded and may be made available more widely.
Who owns the copyright in the lesson?
Copyright is likely to exist in the lesson materials and the lesson recording itself. The owner of the copyright will have the exclusive right to copy, communicate, distribute, perform and adapt their work.
Where a teacher or lecturer has made any materials in his or her capacity as an employee, the ordinary position under UK law is that the institution would own the copyright in those materials, subject to any written agreement to the contrary. This is often supported by an intellectual property clause in contracts of employment.
However that there may be times where the institution does not own the copyright in the materials included in the lesson or lecture. This could occur for example if the member of staff “recycles” notes from a previous employment or incorporates third party materials such as song clips or images. In this case, the recording and its distribution could infringe third parties’ copyright. Permission should be sought from the relevant third parties as required if the institution is unable to confidently rely on an exception (for example fair dealing) or any collective licence.
In order to make it clear that the institution owns the copyright in the recordings of lessons or lectures to help ensure that they are not tampered with or redistributed without the institution’s permission, institutions should include a copyright notice on the recording.
What about data protection?
Alongside providing lessons or lectures online, many institutions may also wish to create a bank of recorded lessons or lectures. This can help provide a range of learning opportunities for students and meet the diverse needs of learners, particularly those with a disability, for whom having access to a recorded lecture may be a reasonable adjustment.
From a data protection perspective, do you also need consent from employees or students to record lessons online? No. Schools, college and universities will have legitimate grounds for processing data without the need to obtain consent; Do, however, ensure that your Privacy Notices for both employees and students are updated to ensure that processing data in this way is covered.
What about reasonable adjustments for disabled students?
Schools, colleges and universities must consider their duties to disabled students under the Equality Act 2010 as they have an obligation to make reasonable adjustments. Institutions should therefore assess whether the lesson or lecture recordings are suited to students with disabilities and whether reasonable adjustments such as subtitles or transcripts should also be made available.
The past year has seen the provision of online learning become more prolific and it is likely to stay this way for a while to come yet. Providing lessons or lectures online creates some interesting legal issues but institutions can take practical steps to protect themselves from any adverse legal implications allowing them to adapt quickly to the new world and to focus on what is important – the provision of excellent education to their students.
For further advice on any of the areas discussed here or any other aspect of online learning from institutions or student perspective, please contact Esther Maxwell, Geraldine Swanton, or Dan Goodall, or another member of the education team in your local office
Checklist for providing lessons online
1. Check your contracts of employment to see if providing lessons online is a change to terms and conditions.
2. Update your staff and student Privacy Notices.
3. Include a copyright notice in the online lessons.
4. Be alive to possible copyright infringements.
5. Consider asking teachers or lecturers to sign a form giving the institution the right to record the lesson/lecture and make the recording available to students.
6. Consider whether any reasonable adjustments can be made for disabled students.