After American University in Washington, DC made the decision to move classes online this semester in response to the pandemic, it sent teaching staff guidance about how their work would change. When Aram Sinnreich, a media professor at AU specializing in intellectual property, received the documents, he naturally decided to check out the copyright provisions. What he found was strange.
AU’s policy said that if Sinnreich or any other teacher recorded their lessons or lectures through software like Skype or Google Hangouts, the teacher would own the copyright to those recordings. But if they used the university-provided software — a popular learning management system called Blackboard — the university would retain the rights. “It stood out for me in a way it wouldn’t necessarily stand out for people who don’t study copyright law,” Sinnreich tells The Verge.
The provision is unsettling because of the power it potentially gives universities, says Sinnreich. In a worst-case scenario, copyrighted teaching material could be deployed against staff during a standoff with management. If teachers were laid off as a result of pandemic-related cuts, for example (a situation that has been described as “unavoidable” by one university president), lectures could be deployed “to undermine the labor power of a faculty workforce,” Sinnreich says.
Universities could essentially tell staff: come back to work, or we’ll use your lecture recordings to teach your classes without you. Or if they were really desperate, universities could fire them and do that anyway.
Sinnreich says he doesn’t think this was AU’s intention at all by including this provision. The same document notes that staff have already objected to the clause, and discussions are underway to adjust it, something AU also told The Verge. “I think it was probably an afterthought that did not get thoroughly vetted,” says Sinnreich. But when he shared the policy on Twitter, dozens of academics responded expressing exactly the same fears.
Many universities’ blackboard installs will literally not allow you to delete video lectures once you’ve uploaded them. It’s no stretch to think universities will try to use these to re-teach courses sans prof, with only a TA, copyright or not. Be mindful. https://t.co/yhb8Emv1WI
— Mar Hicks (@histoftech) August 5, 2020
Mar Hicks, a history of technology professor at the Illinois Institute of Technology, noted that many universities, including her own, don’t even allow staff to delete video lectures they upload to Blackboard. On Twitter, Hicks said it was “no stretch” to think that universities could use such recordings to “re-teach courses” in the future without the staff who created them. “If there’s 1 thing we’ve seen in the pandemic it’s that higher ed is in a grim austerity stage & many universities are desperate to make money at anyone’s expense,” said Hicks.
Speaking to The Verge over the phone, Hicks said such fears “predate this particular crisis” and are a result of austerity measures that have affected the education sector for many years. “For decades there’s been a very strange idea that higher education and universities should be run like businesses instead of like the public goods they are,” says Hicks. “So we’ve seen a lot of strange and harmful budgetary decisions made.”
This has included disempowering teaching staff by moving them away from tenure-track positions and toward temporary contracts with low wages. Many academics The Verge spoke to for this article cited the rise in temporary contracts as a compounding factor in their fears about copyrighted lecture material being used against them. One 2018 analysis by the American Association of University Professors (AAUP) found that 73 percent of faculty positions in the US are non-tenure-track positions.
“Those are the folks we’re most worried about in this current crisis, because they’re going to get cut first,” says Hicks. “They’re also the folks who, if they record their lectures this semester, there’s the highest chance they’re not going to be asked to teach those courses again, and maybe their recorded lectures will be run without their knowledge.”
Right now, the problems are mostly hypothetical. Normally in the US, anything created by employees belongs to employers because of the work for hire doctrine. But teaching material has long been excluded, thanks to custom and legal precedence. It’s a carve-out known as the “teacher exception.” This means that teaching staff generally own the copyright to content they produce.
Where things get complicated is that universities can and do create bespoke policies to claim copyright over recorded material if they so choose. Christopher Sprigman, a law professor at NYU specializing in intellectual property, tells The Verge that such policies are not common right now, but this is likely to change in the near future.
“The pandemic has really accelerated that conversation, and I’ve seen some evidence that universities are starting to push in this direction,” says Sprigman. “It hasn’t broken out into the open just yet, but it’s in the air.”
Last year, for example, Purdue University adopted a new policy that claimed all online modules as copyrightable work belonging to the institution (though individuals could negotiate specific rights agreements with the university). As reported by Inside Higher Ed, when the pandemic hit, staff worried the same policy would be applied to all traditional classes that were now being remotely delivered. After they voiced their worries, the university stated it would not reuse their online modules without permission.
As David Sanders, an associate professor of biology at Purdue, told Inside Higher Ed, the negotiations showed that “on these things you have to take collective action. People make a difference in what happens. Without that, faculty could have potentially lost all IP rights in posting everything online in the transition to remote instruction.”
The UK also offers some guidance on what to expect during these sorts of negotiations. There, teaching staff have been under similar pressures as those in the US due to budget constraints and a push toward marketized education. But lecture recordings are far more common in the UK, used by roughly 70 percent of institutions as of 2016. That meant that when the UK’s University and College Union (UCU) organized a series of strikes starting in 2018 in opposition to cuts, some universities floated the idea of using recorded lectures to break these strikes.
However, there’s no clear evidence that any universities actually followed through on these threats. And indeed, teaching staff reacted with such fury to the suggestions that it actually led to better policies, says Emily Nordmann, a lecturer in psychology at the University of Glasgow in Scotland whose research focuses on lecture capture.
“The backlash was so strong that the University of Edinburgh [one of the institutions where recorded lectures were suggested as a stand-in for teachers] became the first university in the UK to ban recordings to break strikes,” Nordmann tells The Verge. The university’s official policy on recorded lectures now states that “recordings will not be used to cover university staff exercising their legal right to take industrial action without the lecturers’ consent,” and other institutions have updated their own policies since. As Nordmann says: “They made a mistake but they completely rectified it in the right way.”
Nordmann notes that although the fear that recorded lectures will be used to break strikes is a quite specific one, it reflects anxieties about the future of higher education more generally. Recorded lectures have many benefits, making it easier for students to revisit challenging material and helping those who manage disabilities like dyslexia. And of course, during a pandemic, they’re absolutely essential to make remote learning work. But teaching staff worry they are a relatively passive form of instruction, one that allows students to switch off, especially if they’re watching last year’s lectures, reheated for consumption.
“The conversation about lecture recordings is part of a larger conversation about what we’re providing and how we expect students to engage with it,” says Nordmann. She says if universities could communicate better with staff about how recorded lectures are used, it would benefit everyone. “Clear policy and communication can solve a lot of these problems.”
Others are warier, however. Hicks says that as a historian of technology, she’s all too aware of the problem of feature creep — the tendency for a technology’s applications to expand beyond its initial scope. A 2018 paper on workplace surveillance and lecture capture compares the danger to that of CCTV. Although security cameras might be installed in a workplace with the intention of protecting against theft, the information they capture can be subject to all sorts of analysis, from making sure employees aren’t wasting time to gauging their emotional moods. Recording lectures has obvious benefits, but norms about how this information is used are still being established, including the question of copyright.
“As we see from technologies and their unintended consequences, if things are built a certain way, even if the intention isn’t there they can lead to bad outcomes just by virtue of how they work,” says Hicks. “As a technology historian that’s an issue I think about a lot.”