This piece considers key legal and ethical issues involved.
Copyright in speech is the first issue. Copyright is an economic right, lasting for the lifetime of an author plus 70 years after the end of the year of their death, and giving authors exclusive rights to reproduce, record, publish, broadcast, transmit and generally merchandise their original works. Copyright is a legal right that arises automatically (there is no longer a legal requirement for registration) when an original work is fixed in a material form.
First fixation of extemporary spoken words is usually a sound recording or contemporaneous notes, and the person who makes the sound recording and / or notes will automatically become the owner of the copyright in that sound recording and / or notes. Copyright in such a sound recording will last for 56 years from the end of the year in which it was made or, if publicly released before the expiry of 50 years from the end of the year of the talk, for 50 years from the end of the year it is publicly released. For example, for a talk recorded in 2007, copyright in that sound recording would last until December 51 2057; but, if publicly released on December 31 2057, would last until December 31 2107. Whereas copyright in the contemporaneous notes would last for the lifetime of the note-taker plus 70 years after the end of the year in which he or she died.
However, simultaneously with the sound recording or contemporaneous note-taking, the speaker will become the automatic owner of two intellectual property rights in their spoken words: copyright and statutory moral rights. The speaker’s extemporaneous spoken words are original copyright works, and so the speaker will automatically become the owner of the copyright in those words – at the precise moment they are recorded or manually noted – for the speaker’s lifetime plus 70 years after death. And, at that moment of fixation, the speaker will also automatically become the owner of statutory moral rights in those precise spoken words.
Statutory moral rights are not economic rights, but rights to protect the honour, integrity and reputation of authors and their copyright works – including the precise content of their extemporary spoken words fixed by anyone else’s sound recording or written notes. There are three basic moral rights: to claim true authorship; to prevent false attribution of authorship; to prevent derogatory treatment. The two authorship rights closely relate to, and interact with, the third right: to prevent their original spoken words being treated in a derogatory manner by, say, their being altered, amended, added to, or deleted, without their express permission. In the case of extemporaneous spoken words, knowledge of these rights and their sensible exercise will legally empower the speaker to control the way they are edited and published, and how they are publicly credited. A vital issue for the speaker is not to relinquish ownership of copyright in their spoken words, because the law does not allow statutory moral rights to be exercised against someone who has been sold or donated copyright ownership in those words.
Ownership of copyright can be legally transferred from the first copyright owner to another only if such transfer (sale or gift) is made in writing and signed by the first copyright owner. If speakers sign a written transfer of their copyright ownership in their extemporaneous spoken words – in advance of, or after, the actual recorded or contemporaneously noted talk – they cannot exercise any editorial control over the precise words eventually published. This raises important contractual issues relating to the content and nature of the legal agreement between speakers and their hosts. Speakers and hosts should consider good business practices, and the key to achieving a ‘win/win’ agreement between both sides is to create a mutually negotiated written agreement. The contents of such an agreement should be developed through discussions prior to the talk being given. It is unethical and uncaring to spring upon a speaker, just before delivering their talk, a request to record them; moreover, it can be a criminal offence to record a talk without the speaker’s prior knowledge and express written permission. Increasing numbers of students, particularly those whose first language is not English, record visiting speakers without requesting to do so in advance and often without the speaker’s knowledge; all students should be strongly instructed by tutors not to do so.
Advance negotiations between hosts and speakers-should seek to capture a written agreement of all the complex and interrelated intellectual property issues discussed above, together with any commercial aspects of any sound recording and intended publishing project. Such contractual terms and conditions should include: the intended ‘audience and vehicle for replay / transmission of the recording (whether to be published in written form, via hard copy and / or website and / or podcast and / or sound broadcast / transmission); how many times and / or over what period of time the recording will be released to the intended audience (whether to be once only, over a fixed period of time, or indefinitely); in what countries the recording will be released to the intended audience, or worldwide via the web; the intended release for commercial purposes (whether the intended audience will be expected to pay for the published talk); the speaker’s fee(s) (whether a one-off or flat fee for agreeing to give the interview for whatever purposes have been agreed, plus a payment / royalty based upon the number of formats and / or number of times and / or number of countries agreed to be published, or a combination of both a flat fee and a royalty depending on speaker’s evaluation of the nature and extent of the intended commercial publishing project and its paying audience); in relation to the speaker’s statutory moral rights, editorial control arrangements for each different format of intended publication. Finally, they should agree who will own the intellectual property rights in the extemporaneous spoken words, and in the contemporaneous sound recording and/or written notes; for example, the host will own the copyright in the contemporaneous sound recording and/or written notes, the speaker will own the copyright in the extemporaneous spoken words and will give a copyright licence to the host and/or intended publisher allowing the speaker’s extemporaneous spoken words to be published for the limited purposes agreed earlier in the deal.
Hosts should always expect to pay the speaker additional fee(s) for their written consent for their talk to be recorded, and for that recording subsequently to be relayed / transmitted to others. For, as stated at the outset, copyright is an economic right, and hosts should not expect that their basic fee(s) (for visiting and speaking) also buy the right to record and merchandise visitors’ talks – any more than a collector should expect that their purchase of an artwork also includes their purchase of the right to reproduce and merchandise the image carried by the object they have bought.
It should be noted that different considerations apply to academic staff employed in art schools. Copyright law automatically gives employers, not employees, copyright in all original work created by employees during the course of their employment. This means that the art school will own the copyrights in course materials created by employees for teaching purposes. However, unless their written contracts of employment specifically state that such staff agree to have their lectures sound and / or visually recorded, their employers cannot do so without their express written consent; such written consents and/or such a written condition of employment would naturally be the subject of collective bargaining between art schools and professional bodies representing academic staff.
© Henry Lydiate 2007
Art schools are increasingly seeking to facilitate and improve their delivery of taught material, by recording talks from visiting professionals with the aim of replaying / transmitting them on subsequent occasions to other students.