Do I need the teacher's consent to record class?

Do I need the teacher's consent to record class?

According to 'Article 5, Paragraph 1 of the Copyright Act', literary works include 'poetry, lyrics, prose, novels, scripts, academic discussions, speeches, and other literary works.' The content of the teacher's lesson falls under the 'speech' referred to here. As long as it meets the criteria for copyright protection (please refer to Question 2 in Article 1), the content of the teacher's lesson is considered a protected 'literary work.' When students want to record during class for review or note-taking at home, because the content of the teacher's lesson is a protected 'literary work,' according to Article 3, Paragraph 1, Item 5 of the Copyright Act, 'Reproduction refers to the direct or indirect, permanent or temporary duplication of works by means of printing, photocopying, audio recording, video recording, photography, written notes, or other methods.' The act of recording is classified as 'reproduction,' which requires the consent of the copyright holder unless it qualifies as fair use.

First, let's look at who holds the copyright to the content of the speech delivered by the teacher during the teaching activities. According to Article 11 of the Copyright Act: "I. Works completed by an employee in the course of their employment shall be attributed to the employee as the author. However, if the contract stipulates that the employer is the author, that agreement shall prevail. II. In accordance with the preceding paragraph, if the employee is attributed as the author, the copyright shall belong to the employer. However, if the contract stipulates that the copyright belongs to the employee, that agreement shall prevail. III. The term 'employee' in the preceding two paragraphs includes public servants." The 'literary work' resulting from the teaching work performed by teachers in high schools and below undoubtedly falls under the 'works completed in the course of employment' as mentioned in the aforementioned article. If the teacher and the school have an agreement regarding copyright ownership, it will be determined based on the contract between the teacher and the school as to who is the author and copyright holder. In the absence of a specific agreement, according to the previous provisions, the teacher only has moral rights, while the school (employer) holds the copyright.

Therefore, unless there is an agreement that the copyright belongs to the teacher, the school should obtain the copyright of the teacher's lesson content. Since 'reproduction' is a type of copyright, consent from the school must be obtained; as for the teacher's consent, since the teacher only has moral rights, simple classroom recordings should not constitute a violation of moral rights. Thus, even if the teacher's consent is not obtained, as long as the student has the school's consent to record during class, it will not violate copyright law. However, in the case of colleges and universities, professors or lecturers employed by the school may be considered under the type of 'works completed by commissioned personnel,' which should be governed by Article 12 of the Copyright Act. Nonetheless, there is still room for discussion on whether the scope of teaching activities falls under 'works completed in the course of employment.' Personally, I believe that Article 11 should still apply, as the focus of Article 11 is on works created in the course of fulfilling duties. Professors or lecturers employed by the school are performing a duty as stipulated by the contract; unless the professor or lecturer has a separate agreement with the school regarding copyright ownership, they should be treated similarly to teachers in high schools and below.

Secondly, if the school's consent has not been obtained, is recording the teacher's lesson content possibly considered fair use? According to Article 51 of the Copyright Act: "For personal or family non-profit purposes, within reasonable limits, the reproduction of publicly published works using library and non-public-use machines is allowed." Observing from the text, if students use personal tools like recorders or voice recorders to record class content, it should comply with the provision of 'reproduction using machines not for public use.' Since the teacher's content is publicly presented to a specific group, it also meets the requirements of 'publicly published works.' The key point is whether the recording of the entire class content falls within the 'reasonable limits.' Since the copyright belongs to the school, and the school serves the purpose of helping students learn, the reproduction conducted by students for review should not significantly impact the school's copyright, and it can be argued that it aligns with the purpose of the work's creation. Therefore, it can be considered as 'within reasonable limits' and can claim fair use.

From the aforementioned provisions of the Copyright Act, when students record during class for future review, since the teacher's content usually falls under works completed in the course of employment, consent from the copyright holder, which is the school, is generally required. However, even without the school's consent, there is still a chance to argue that this is fair use; the teacher's agreement or disagreement is not particularly significant under copyright law. However, can the teacher really refuse the student to record? Although copyright law does not allow teachers to pursue claims of copyright infringement against student recordings, as the manager of the classroom space, the teacher has the right to impose certain regulations on the activities within that space, which may include prohibiting recording. Nevertheless, even if the teacher prohibits students from recording, it can only be enforced within the scope of school regulations, such as confiscating recording devices or stopping the lesson, and cannot be considered a violation of copyright under the prohibition against recording. To avoid such disputes, it is suggested that schools engage in discussions to establish guidelines regarding classroom recordings; perhaps allowing teachers to decide on this right would help maintain smooth classroom proceedings.

• The content of this article is excerpted from the website of the Intellectual Property Office of the Ministry of Economic Affairs
• Authors: Lai Wenzhi, Wang Wenjun