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Copyright and Other Rights for Creating Time-based Media Resources

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This advice document provides some basic information on rights issues associated with creating time-based digital media resources. By time-based we mean resources that change over time - including spoken audio, music, animation, and video - as opposed to still images or screen shots, which do not change over time. Rights issues include copyright, recording rights, moral rights and performance rights.

Please note: The remit of JISC Digital Media includes the provision of practical advice and guidance to the FE and HE communities on copyright matters. Staff at JISC Digital Media are not lawyers and all advice is provided on that basis. Should you wish to receive a legal opinion in relation to a copyright matter then you will need to seek the services of a suitable qualified lawyer. In the first instance you might wish to contact our colleagues at JISC Legal.

Introduction

This paper aims to provide some basic information and food-for-thought surrounding the increasingly popular uses of digital time-based media, especially its use within education; however, much of the information is applicable to the cultural heritage sector. This paper is not intended as a definitive standard, but aims to disentagle and explain some of the complex and often confusing information regarding rights and media in a readable and accessible format. It should also be noted that the content does not constitute actual legal advice, and if any of the information within this paper leads to further questions regarding your own institution's projects, then please do not hesitate to contact us via our helpdesk, or our sister service JISC Legal for further assistance.

The rising use of digital time-based media in institutions has been in parallel with the technologies available to create such resources, and the means to deliver and access them. The flip side of this is that every media resource, however large or small, old or new, has associated rights that need to be taken into account in order to protect people's work and, comply with the law. Furthermore, the role of ethical practice needs to be taken into account to prevent information and resources being used in inappropriate contexts.

1. Introduction to rights and time-based media

Every physical resource has associated copyrights, put simply, to protect the copying of a piece of work. With time-based media a production is likely to involve the performance of individuals, therefore an added dimension, performing rights, are needed to protect the specific performance of the work. The work can be performed by others, but showing or copying your performance of the work is protected. These performance rights are independent of copyright, but should be treated in a similar way. Section 3 of this paper discusses all of the rights associated with recording individuals.

It is increasingly common for time-based media productions to consist of a wide range of different media sources. Access to resources via the web and more powerful technologies is slowly moving audio and video production away from content determined by the teacher, such as traditional talking heads towards richer sources of content creation. Presentation slides, images, film or sound materials from other sources and even internet pages and blogs can be embedded into productions. Materials from any of these sources (and others) have their own associated rights that need to be taken into account independently from your production as a whole. These issues are discussed further in section 4.

An important by-product of implementing a progressive rights policy is the effect on students and users. For example, with the increase of student generated media in education, dissemination of copyright information is crucial to promote good practice and awareness in an area where ignorance can be in direct breach of the law. Attention to good practice also brings direct benefits to their academic and professional development.

2. What's the use?

Copyright law is in place to protect the rights of those involved in producing work. Although it can be difficult to understand at times it is important to protect the works produced by your institution, and to provide protection against unlawful exploitation of work produced by people beyond the institution, whether this is intentional or not.

Before a production project begins it is important to ascertain how you intend the materials to be used, not just in the short-term, but the possible ways in which they may be delivered, accessed and used in the future. Planning these potential avenues of use will help to make sure that you collate all of the relevant permissions and rights involved for the appropriate uses, saving you time and more importantly avoiding any potential legal disputes in the future.

3. Recording people

What rights exist when people are being recorded?

Copyright of content - The creator of the work owns the literary copyright of the work. For example, the writer of the script or the author of an extract of a book being read own the copyright of each respected work.
Recording rights - These are owned by the person (or people) who make the recording. They can be sometimes referred to as the producer or the recordist - the person physically manning the recording equipment.
Performance rights - The literal interpretation of the script (or content) is owned by the person(s) being recorded and reading (or acting) it out. This also has associated copying rights which can, for example, restrict students making copies for themselves. Performance rights and recordists rights, when not waived, exist for 50 years from the year they were made.
Moral rights - The moral (or artistic) rights of a piece of work exist to identify the author with his or her work, and to ensure that its integrity is not lost. They lie solely with the author of the work and cannot be reassigned, or traded in any way. That said, moral rights can be waived, and in doing so they allow users the right to edit or amend the material.

To adhere to moral rights:

The author should be identified within the production.
You are prohibited from playing a version of the work which has been modified, if the modification may be damaging to the author.

4. Who automatically owns what rights?

The Copyright, Designs and Patents Act 1988 (CPDA) specifies that any copyrights associated to a literary, dramatic work, sound recording or film made by an employee during the course of their employment, is automatically owned by the employer, unless otherwise agreed. However, performance rights and copyrights created outside employment, and those of non-employees will need to be attained.

Make sure the individuals you are recording are happy with the ways that you intend to use the resource (see Section 2). Verbal consent of this will indicate a person's permission at a given time, though will not affect their rights to amend this decision at a later date.

In education, this piece of law is often reiterated in an employee's contract, unless it is otherwise negotiated prior to employment. Academic researchers in institutions are often faced with difficulties understanding the rights associated with their work, especially when they move between institutional employment. For further information The British Academy and the Publishers Association have published the very informative paper - Joint Guidelines on Copyright and Academic Research - Guidelines for researchers and publishers in the Humanities and Social Sciences, which addresses issues such as this.

If your project involves outsourcing work to external contractors, such as a media production company, they will automatically own the rights associated with the making of the resources. A contract will therefore need to be signed, to avoid the company having dictatorial powers in the future regarding the use of the resources.

5. Attaining rights and clearance forms

A copyright clearance form allows an individual to pass over their rights to you (or in nearly all cases, your institution). This is based on the conditions set against their signature which is why it is important to plan ahead. The potential uses and means of delivery need to be expressed clearly in the clearance form. This should give the producer adequate permissions while protecting the rights of the person being recorded.

Commonly, a clearance form will state that the signatory signs away all their associated rights to a piece of work. This can allow for a generic clearance form to be used in all circumstances, negating the need to be specific about individual rights, which may or may not change during the course of the production.

Further information on the clearance process can be found in this excellent online guide, The Copyright Toolkit.

An example of a copyright clearance form (PDF) can be seen here.

NOTE: It is advised that you seek legal advice via your institution when it comes to creating clearance forms.

6. Using third party materials

If you intend to include works that have been created where you or your institution are not the copyright holder, then you must obtain the appropriate permissions from the rights holder. Examples include images in a slide presentation that were downloaded from the internet or commercial music being played during a recorded lecture.

Commercial works, such as songs or videos often have rights where ownership can be very difficult to establish and permissions impossible to obtain. Care should be taken when selecting and including any third party material.

For more information on using music and sound effects see section 7.

7. Adding music/sound effects

Sourcing free-to-use sounds to use in your productions can be a rather time consuming and often problematic task. Creating your own audio for sound effects, idents, background music or intro's may be beyond the scope of your project, and finding sound files online where the permissions can be concretely determined is often very difficult.

JISC Digital Media will soon be delivering an online tutorial on finding free-to-use sounds. You may also find our advice documents Creating an Audio Ident and Finding Video, Audio and Images Online contain helpful information.

8. Ethics and libellous content

Whereas this paper does not wish to go into any great detail regarding the ethical issues relating to the way that recordings of people are made and used, an awareness about ethics is important. Ethical guidance relating to recordings in time-based media should be in-line with institutional policies and requires that it is of paramount importance that the producer acts responsibly, treating subjects with care and respect.

As expected, if you publish a work which contains any libellous content, then legal responsibility lies with your institution. However, if, for example, an employee acts in a manner outside of the normal conduct authorised by your institution, then liability lies with the individual.

The best way of minimising the delivery and exposure to libellous content is by maintaining as much control as possible over the content being created and/or delivered. This is especially crucial for occasions when staff members or students are encouraged to produce and upload their own content.

When producing your own media, the following questions may help you identify any areas where decisions need to be made when making your resources available to your audience.

Ethical Checklist

Have you fully explained how you intend to use the resource with those who are portrayed or perform?
Are there any areas where people you are recording can be deemed as vulnerable? Areas such as detailing personal experiences or discussing sensitive issues?
Are there any views or opinions expressed which may later reflect badly on the person speaking or that may may be deemed as offensive?
Does any content intend to discredit or diminish the works of others?

The above list of questions is intended to provoke thought and is by no means extensive. Also many cases require a judgement to be made as often there is no clear ‘right or wrong' solution. In some cases the producer should protect themselves by stating that the views belong to those of the individual and not of the producer or producer's institution

More detailed information on liability (specifically liability with regard to Podcasts) can be found in the JISC Legal document - Podcasts and the Law (PDF).

9. Managing your rights information

The inclusion of ascertaining rights into a production workflow can not only save time and resources in the short term, but can alleviate any issues which may arise later on where rights have not been fully sought, or if they are challenged or withheld by a party.

As well as completing the appropriate clearance forms (see section 3), the obtaining of rights for third party works should be assessed and documented (with dates) prior to and during production. This log should be actively maintained by the appropriate members of staff and backed up regularly.

For more information on workflows and rights the JISC funded Web2Rights project has some excellent guides, specifically their flowcharts.

10. Delivering your media

There are many ways of licensing your productions for delivery either via physical distribution or the web. Institutional policy, and/or the objectives of your project may dictate how this will be done, and your first port of call should be with your institution's legal department.

Using Creative Commons licensing is one very popular method of protecting resources as it allows you to tailor the restrictions and privileges given to your audience, in a very simple way. For example, it can permit any use of a resource as long as it is correctly attributed, or it can reserve all rights of the resource making it viewable only (i.e. no copying or further use is allowed).

References and useful links

Stutter, G & Gibson, Dr. J (2007) Podcasts and the Law. JISC Legal
The Steeple Podcasting Booklet (2009)
The Web2Rights Project (JISC)
Creative Commons

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