COVID-19| Lecture Capture

These guidelines apply to the use of Lecture Capture to deliver content as an alternative or supplement to face-to-face learning.  As used in these guidelines, the term “Lecture Capture” means the  recording (audio and/or visual) of lectures, demonstrations and any other type of content traditionally delivered in a face-to-face learning environment for uses such as content review, missed in-person learning, online learning and education, and other approved uses.  For purposes of these guidelines, Lecture Capture includes both the recording of actual classes as well as content recorded outside of a classroom context (i.e. without students or other audience present).  Such lectures may be pre-recorded and distributed to students ahead of time; they may be recorded during a live class session and made available for later review; or they may be recordings of remote instruction (e.g. classes presented through Zoom or a similar online platform).

Lecture Capture can take place in a variety of settings and be utilized for a variety of purposes. The rights and responsibilities involved in any Lecture Capture will depend on such things as the audience (both at the recording and those viewing the recording thereafter), the content being recorded, and the ownership of the content being recorded.

Definitions

Cross-listed Course

"Cross-listed Course" means, for any given semester, a course that is broken down into separate sections that may or may not meet on the same dates and time, or be taught by the same instructor.

FERPA

"FERPA" means the Family Educational Rights and Privacy Act, which is the federal privacy law that governs the access to student educational information and records.  For additional information, see the University’s FERPA policy.

Lecture Capture Content

"Lecture Capture Content" means classroom lectures, questions/answers shared among instructors and students, and other classroom materials (e.g. PowerPoint presentations, text comments on a whiteboard, shared Google Docs, chat applications, etc.) that are recorded and presented through a University provided Lecture Capture platform (e.g. Kaltura, etc.) or another University provided technology platform (e.g. Zoom, etc.).

LMS 

"LMS" means the Canvas learning management system, and any other learning management systems deployed by the University in the future. 

Compliance with Applicable Laws & Policies

When utilizing Lecture Capture faculty, staff and students must adhere to Federal and state laws and regulations and applicable University policies, including the following:

FERPA

All Lecture Capture Content must comply with FERPA and the University’s FERPA policy.  If Lecture Capture Content includes only instructor content and does not involve the recording of students (e.g. a “talking head video”), such content will not create FERPA concerns. If the Lecture Capture Content includes audio or video of any student interactions (e.g. students asking questions, making presentations, leading a class, etc.), or if it is possible to identify students through the subject matter of the recording, then such Lecture Capture Content likely constitutes protected educational records under FERPA.

Use of Lecture Capture Content within the University 

To ensure compliance with FERPA, instructors are strongly encouraged to place Lecture Capture Content that contains FERPA protected education records exclusively on the LMS and grant access only to students enrolled in the course section in which the recording took place.  Instructors are permitted to use and store Lecture Capture Content on Kaltura, Webex, Google Drive, and/or Zoom, provided that instructors (1) comply with the University’s Responsible Use of University Computing Resources policy; (2) comply with the University’s Records Retention Manual, and ensure that once the FERPA retention period is over that such Lecture Capture Content is deleted or disposed of appropriately; and (3) to the extent practicable, transfer Lecture Capture Content stored on Webex or Zoom to Kaltura for long term storage.   

It is further recommended that instructors advise students in the course syllabus that regularly scheduled classroom recordings are planned for the course and offer off camera seating to students who do not wish to be recorded. 

Lecture Capture Content associated with a single course may be shared with students in that course.  Lecture Capture Content associated with a Cross-listed Course may be shared with students in each section if (1) each section of the Cross-listed Course is taught by the same instructor; and (2) students are advised in the course syllabus or a course announcement that Lecture Capture Content will be shared with all students enrolled in the Cross-listed Course regardless of section assignment.  Lecture Capture Content associated with a Cross-listed Course that does not meet the above requirements cannot be shared with students in separate sections, and instructors should take steps to ensure student privacy and compliance with FERPA.

For pedagogical considerations and additional guidance on cross-listing and FERPA, please visit https://miamioh.edu/digital-learning/support-for-lecture-capture-scenarios/index.html

If an instructor wishes to reuse or share Lecture Capture Content containing FERPA protected education records with University students not enrolled in the course section (or Cross-listed course sections) in which the recording was made, then the instructor must (1) obtain the permission of his or her department chair and (2) obtain a signed consent from each student recorded in such Lecture Capture Content.  All consents signed by students must set forth with specificity how the Lecture Capture Content will be used and the outside audience to whom it will be presented. The instructor shall retain such signed consents for as long as such Lecture Capture Content is made available. If a FERPA consent cannot be obtained for a student, then prior to sharing any Lecture Capture Content including the non-consenting student, the recording must be edited to either omit such student or otherwise de-identify such student.   Note that a FERPA consent will need to be obtained from the parents or guardians of any high school student enrolled in a College Credit Plus course if such person is under 18 years of age.  The University’s general FERPA release is accessible on the Office of General Counsel’s FERPA webpage.

Use of Lecture Capture Content Outside the University 

Making Lecture Capture Content that contains FERPA protected records available to anyone other than enrolled Miami students as described above, such as on a publically accessible internet platform, must in addition to obtaining the necessary consents be reviewed and approved by the Provost and the Office of General Counsel for purposes of compliance with FERPA and well as other applicable policies, including without limitation the University’s Conflict of Commitment provisions found in Miami’s Ethics and External Services policy.

Americans with Disabilities Act/ Section 504 of the Rehabilitation Act

Lecture Capture content must be made accessible for students with disabilities. See the University’s Accessible Technology policy.

Ohio’s Right of Publicity Law

Ohio law provides that no person shall use any aspect of an individual’s “persona” (name, voice, signature, photograph, image, likeness, or distinctive appearance” for a commercial purpose without such individual’s permission.  However, a use of an individual’s Persona by an institution of higher education is permitted if all of the following apply:

  1. The individual is or was a student at, or a member of the faculty or staff of, the institution of higher education; and
  2. The use of the individual’s persona is for educational purposes or for the promotion of the institution of higher education and its educational or institutional objectives.

All Lecture Capture Content that captures an individual’s persona must conform to the above principles or the consent of the individual must be obtained.  Lecture Capture Materials that involve the participation of third party speakers or participants must include a speaker consent. 

Guest Speakers

If a guest speaker will receive compensation of any form, then University Human Resources will need to make a determination as to whether the speaker is an employee or an independent contractor.  The requesting instructor will need to follow the process described on the following URL:  https://miamioh.edu/academic-affairs/academic-personnel/administrators/independent-contractors/index.html.     

For speakers who are volunteering their services, instructors will need to have the guest speaker complete the Volunteer Guest Speaker Agreement.    

Questions pertaining to speaker agreements may be directed to John Woodard, Associate General Counsel, at woodarje@miamioh.edu.

Copyright and Fair Use

Copyright law protects the ownership interest of content creators and authors in their works. Lecture Capture Content must comply with copyright law when it contains the work of others (including the copyrightable works of students).  In order to utilize the copyrighted work of others, instructors must either obtain the author’s permission, or rely on an exception to copyright law.  Please see the Practical Guidance section below for more information regarding exceptions to copyright law (e.g. fair use, TEACH Act, etc.). 

Ownership of Lecture Capture Content

Ownership of Lecture Capture Content shall be determined in accordance with the University’s Intellectual Property policy.  To protect Lecture Capture Content, the instructor should inform students in the syllabus that the instructor has granted students access to the Lecture Capture Material for limited purpose of participating in the course  and the instructor requires written consent for students to duplicate or share, in any fashion, the Lecture Capture Content.  The following is sample language that instructors are encouraged to include in their class syllabi: 

"Some of the sessions in this course will be recorded or live-streamed. Such recordings/streaming will only be available to students registered for this class. The faculty member will provide you notice if any of these recordings/streaming will be shared with anyone outside of this course, and will obtain your prior written consent before sharing.  These recordings are the intellectual property of the faculty member [and  ______] and may not be shared or reproduced without the explicit, written consent of the faculty member [and ______]. Further, students may not share these sessions with those not in the class, or upload them to any other online environment. Doing so would be a breach of the Code of Student Conduct."

Prohibition on Sharing or Disseminating Lecture Capture Content

Anyone using or accessing Lecture Capture Content must comply with: all applicable copyright laws and all restrictions imposed by the instructor/owner; the University’s Responsible Use of University Computing Resources policy; and Unauthorized Peer to Peer File Sharing policy.  In most cases, students do not own any rights or have any interest in any Lecture Capture Content, and therefore cannot share or disclose any Lecture Capture Content by any means, including, but not limited to posting to social media, sending via email to non-classmates, and/or placing on third-party storage/sharing solutions (e.g., DropBox). Instructors should apprise students that a violation of these University policies could result in disciplinary action under the University’s Code of Student Conduct. 

Practice Guidance

FERPA

May a recording that includes student participation be posted for other class members to view or listen to?

Yes. If access is limited to other students in the class, FERPA does not limit or prevent its use and does not require obtaining a written consent. This allows instructors to create access for students in the class to watch or re-watch past class sessions.

Can an instructor allow individuals outside of a class to access a video of that class that includes student participation?

Maybe. There are several ways to use recordings that include student participation.
  1. The instructor may obtain individualized FERPA consents from the students in the recording which allow use of that portion of the recordings. This type of consent can be obtained on a case-by-case basis or from all the students at the outset of a class.
  2. Recordings can be edited to either omit any student who has not consented to the use of their voice or image, or be edited to de-identify the student in the recording (which can include avoiding or removing any mention of the student’s name, blurring the student’s image, altering voice recordings, etc.).
  3. Recordings can also be planned so that students (such as those asking questions during a class) are not shown in the video or referred to by name (another way to de-identify the student).

What is the easiest way to comply with FERPA if I am video recording my class sessions and students will be asking questions, doing presentations, or appearing on camera?

If access is limited to other students in the class, FERPA does not limit or prevent its use and does not require obtaining a written consent. This allows instructors to create access for students in the class to watch or re-watch past class sessions.

If access will not be limited to students in the class, plan the recordings accordingly. Make sure not to show students who are asking questions and don’t refer to the students by name. Avoid repeating the student’s name in the recording (de-identifying the students removes the need for a specific consent from each student depicted).  For virtual lectures, have students turn off their video and audio.  If a student happens to appear on camera, their identity can be edited out or a written consent can be obtained.

Because student presentations make it more difficult to de-identify the student, the instructor should obtain a FERPA consent from the student making a presentation. For any video projects, such as student-made films, you should obtain a written consent.

Can the instructor show recordings from a prior semester’s class to the current class?

Under FERPA, this situation must be treated as if the recordings were being shown to a third-party audience which requires FERPA compliance through use of consents or de-identification of any students depicted.

What if a student declines to sign a FERPA consent?

Students cannot be compelled or required to give consent, though the instructor may edit the student out of the recording or de-identify him or her even if the student refuses to consent.

Can viewers duplicate or redistribute recorded lectures?

No. In all cases, duplication or redistribution of lectures is prohibited without the express written permission of the course instructor. Unauthorized duplication or dissemination of lecture capture materials may violate federal or state law and University policy. Violation of University policy may result in disciplinary action.

Copyright

All faculty and staff should consider the copyright implications of using any material in your teaching. To avoid copyright pitfalls, consider the following:


Linking to Library Resources

For articles, e-books, and other information sources owned by the Miami University libraries, you can avoid copyright complications by linking to those items on the vendor's website or in a database rather than copying it into your Canvas course.  Please contact your respective libraries for additional assistance.

Fair Use and the TEACH Act

Fair use is encoded in the U.S. Copyright Act, which also includes many other provisions allowing uses of words in the classroom and for other educational purposes.  Fair use is not an infringement of copyright - it allows under certain conditions a person to use copyright protected material without permission.  Fair use may allow us to clip, quote, scan, share, and make many other common uses of protected works. But not everything is within fair use. Fair use depends on a reasoned and balanced application of four factors: the purpose of the use; the nature of the work used; the amount used; and the effect of the use on the market for the original. A more in-depth discussion of fair use may be found on the University's Fair Use Webpage.


The Technology, Education and Copyright Harmonization Act (2002) (revised Sections 110(2) and 112 of the U.S. Copyright Law), also referred to as the TEACH Act, provides guidelines for using copyrighted material in e-learning courses.  In some cases it extends Fair Use provisions into the online education environment. The American Library Association has published a helpful guide related to the TEACH Act. 
Copyright issues involving fair use and the TEACH Act are highly detailed, and the right to use works is usually subject to many conditions and limitations.  Questions regarding copyright, fair use, and the TEACH Act should be directed to Carla Myers in the King Library at myersc2@miamioh.edu.