Re: Disabled Students Recording of Lectures

Jamie Wodetzki writes:
[Comments about students taping lectures]
>
> First, this is an ownership issue. Surely lecture notes are prepared
> pursuant to the terms of the lecturers' contracts of employment and
> therefore copyright vests in the employer (ie the university).

Unless the terms of the employment, express or implied, allow the lecturer to retain the copyright. Some Universities have an IP statement to this effect. In the absence of such a statement, conduct over a long period of time would probably give rise to promissary estoppel against the Uni in favour of the lecturer. Uni's have long allowed lecturers to commercially exploit material prepared for Uni lectures without claiming ownership.

> (I am also presuming that the lecturers prepare their lecture notes in
> writing, prior to delivery of the lecture).

If not, under Australian law, the first person to reduce the ideas into material form is the author, thus producing a room full of authors of different expressions of those lecture notes ;-) including the student who made the tape recording thus disposing of the question entirely (at least from a copyright viewpoint).

> Second, there is a fair dealing issue to some extent. The research or
> study purpose is satisfied, I presume, so it turns on whether the amount
> taped is 'fair'. This is undefined under the Oz Act because the material
> is not covered by the 10% or 1 chapter deeming provisions (lecture notes
> are not 'published editions ... of not less than 10 pages'). If we say
> that it probably is fair for disabled students to tape the whole lecture
> and use it for research or study, that doesn't mean they can use it for
> other purposes.
  

Agreed. But it also means that the student does not need permission to make the recording.  

> Third, since the uni owns the work, it can allow such taping and use,
> subject to any conditions it chooses to impose, as it sees fit.

Agreed.

But those conditions are subject to the contract the Uni already has with the student to provide that student instruction. Unless that original contract imposes conditions on taping lectures then there is a strong case that being able to tape lectures for the purpose of research and study is a reasonable expectation, particularly from a student with a writing disability and so such permission should be implied. An attempt by the lecturer or the Uni to impose a subsequent and inconsistent contract on the students can and should be resisted. From the lecturer, because he or she has no bargaining power and no power to prevent the student from taping in accordance with their contract with the Uni, and from the Uni because they are reducing the services provided to the student (presumably without compensating the student).

If a contract prevents such taping the student may still be able to defeat those conditions because of:

• inconsistency with Federal copyright law (because that contract is usually incorporated in Uni regulations which in all but one Australian Uni are State subordinate legislation)*;
• duress on the student in obtaining their assent to those terms (i.e. `you will not be enrolled or graduate unless you agree to these terms' - admittedly a weak argument);
• unconscionability by the Uni or lecturer in obtaining their assent;
• lack of consideration moving from the lecturer (or the Uni if the contract is additional to the original contract to provide instruction).
  • Note: this argument if successful could invalidate ANY university IP policy.

Regardless of whether the Uni or the lecturer owns the copyright:

• if there is no contractual obligation preventing the student taping lectures; and
• if the taping is a fair use for research and study purposes;

the student cannot be prevented from taping the lecture except by physically ejecting the student. Such physical ejection in the absence of any misconduct from the student would be a breach of contract to provide instruction.

> There may be other issues to consider (statutory licence under part VB
> div 3 for example) but I don't think you need to go further than what's
> above.

I agree on both counts.

Tim Arnold-Moore, LL.B. (Melb)      | Multimedia Database Systems, CITRI  |
tja[_at_]citri.edu.au  B.Sc. (Hons Melb) | 723 Swanston St      ----------------
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