MEDEV

School of Medical Sciences Education Development

The Copyright, Designs and Patents Act 1988 should really have been called the Copyright, Performance, Designs and Patents Act 1988 because it has five parts (two dealing with Designs). Part I of the Copyright, Designs and Patents Act 1988 is made up of 10 chapters devoted entirely to Copyright. Part II has four chapters dealing with Rights in Performances.

There are some who think that the act of teaching counts as a performance (remember that it is only covered by copyright if it is recorded or expressed). It is a part of the Act intended to protect the creativity in the performance of an artistic or literary work (such as the way that a play is orated, danced or music is performed, etc.). 

Students are increasingly recording teachers using mobile phones and other devices and the copyright is technically owned by the student (who recorded it), but teachers could argue that they have performance rights in the delivery. Some institutions have policies banning students from recording lectures (for example), others record all lectures so that students can play them back later. 

Performers have performance rights which, once recorded, require permission for onward copying. It is wise to request 'permission' forms to be signed to be sure that they have given their permission for you to copy their performed works. In this guidance we make the distinction between copyright 'permission' and 'consent' but here it gets a bit blurry. 

Consider whether any video or audio (broadcasting) elements are in your resource. This is where a 'performer' (who could be you, a colleague, family member, role player or student, etc.) has kindly agreed to appear in your video, music or audio, for example to be interviewed about the latest hot topic. Be particularly wary of inclusion of film, TV, music/soundtrack in your resources - the risks of litigation resulting from this are high.

A whole section of our Risk-kit is devoted to the notion of 'consent' for appearing in open educational resources, which is broader than performance copyrights and a version aimed at consenting patients appearing in recordings on the internet is also available. Consent recognises a basic human right to be treated with respect. It is based on the principles underpinning data protection and covers everything from written expression of a personal story (there is copyright in the written expression and implicit personal rights in the story itself) to an X-ray of your arm to film/video of your face. Once educational resources are 'out there' on the Internet then it would be very difficult to withdraw them, however this is sometimes required where, for example, a person has died and the family has requested resources be withdrawn.